I confess, I have never watched any law related movie or series, but I always loved watching doctors in their element. My friends found it a little odd given that I am an aspiring lawyer myself. What most of them do not know is that I always wanted to be a doctor. I always thought that medicine was the noblest profession out there and I have to say, Ben Carson’s book ‘Think Big’ fueled that idea. I remember reading about how he had a hand-eye coordination or something. You have to promise not to laugh at what I am going to say next.

So my mom had these tiny fruit knives; sharp, serrated and with black plastic handles. I was 11 at the time I think. So I went out back and picked up this huge cardboard and placed it against a concrete wall in an almost 65 degree angle. I took my mom’s knives and thought that I should test that theory. Thing is, I think I had watched too many movies because, why did I not try that with a ball or something. Fast forward, I throw these knives to a marked ‘center’ and I was impressed; I was 75% accurate with my throws.

Anyway …

I have thought of the phrase, ‘the Devil’s Advocate and always liked how badass that sounds. It has a mystery vibe if you asked me. I find it intriguing. If I was given a dollar for every time someone asked me whether or not I would represent anyone in court having knowledge that they actually did the crime, I would be a whole lot richer right now and I haven’t graduated law school yet. When I stared out in campus, I wanted to help make the society much safer. I always thought that every situation was either black or white; it either is or isn’t, it either happened or didn’t. I never thought that there is always a grey area, a middle ground.

Very recently I was having a conversation in which I was put to the spot for taking a prisoner’s side. My research currently is about ex-prisoners and their reintegration back into society after completion of their sentence. Man, if I knew how hard and how tough anyone else would take it, I would never start a conversation about it. However, what most people do not know, even though a lot of articles have been published about it is that the state of our prisons in Kenya is very wanting. . In September 2018, the total prison population was placed at 51,130 persons within 108 penal institutions; placing the occupancy level at 190.5% according to World Prison Brief. More recently, Kenya Prisons was alleged to house nearly 50,000 people in facilities designed to hold only 14,000 people by Christine Mungai’s article in The Elephant.  According to Kenya Prisons Service, the capacity of its 118 penal institutions is placed at 14,000 persons with a current population of 54,000 people. A perfect example would be the Nairobi Industrial Area Remand Prison which holds about 2,400 remandees, double its normal capacity according to the International Commission of Jurists.

I could go on and on. However, the real question would be what the solution to our current predicament might be. The situation with Covid-19 does not make it easier either. But, my previous article on The Old Man (https://matingis.com/2020/05/12/the-old-man/) tried to show what a number of inmates face and how their situation could have been softened had we not cast a condemning finger on such persons. When taking numerous criminal law classes, I learnt that crime has two aspects; the guilty frame of the mind and the wrongful act. What society sees when someone is accused of commission of a wrongful act is just one aspect of crime. The other aspect comes into play when an accused person stands trial and that matter is either proved or disproved.

Would I represent someone if they confessed to commission of the crime? Yes. There is more to a case than meets the eye. I have a friend in medical school and I always love when we have conversations. This was a rather interesting question he asked, so I opted to throw it back at him. Lol. Yes, a typical Kenyan. I loved his answer because I sort of expected it.

“Would you save the life of a person accused of crimes against humanity and found guilty, if they needed emergency treatment?”

“Yes I would, I don’t play God by deciding who lives or dies.”

Well I expected the Hippocratic Oath would be used here but I got a better answer. Well, it still made the same point but I love how it was framed. And just so you know, according to our health laws, every person is entitled to emergency treatment.

I would take up such a case if I had reason to believe that the mind of such an accused was not in any way guilty. By a guilty mind, I mean that this person either intended to, thought of or had knowledge that his or her act would cause the death of another. However, even if the mind was guilty, we forget that there are factors that actually mitigate these offences; self defense or protection of person or property, or a mistake. Therefore, why are we always quick to judge? Are we not playing God when we do decide that a person must be condemned without hearing?

When lawyers take up such cases regardless of whether or not they know that these persons are guilty, they more often than not do so to accord this person a fair trial. Take for instance, if the old man was heard and given proper legal representation, he may not have gotten a 25 year sentence. We often seek fairness and justice from our Courts. When we condemn accused persons before they have a fair hearing, we are playing judge, jury and executioner not realizing that the fate of such persons, their liberty and all rights that come attached, will be denied.

The same case goes to when we show such for persons who exit penal institutions after serving time. However, that would be a discussion for another day. The Devil’s Advocate is not as tough as you thought, huh? After the discussion, we did have a tie at the end of the day and both of us were able to walk away from the table with neither a win nor a loss, just, more insight. I would still pick a medical related series any day!





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