In the time that I have not been writing, I have tried my level best to dedicate most of my time to complete my pending school work and project. The remainder of my time has, however, been distributed to keeping fit, learning new skills and as much as possible, trying to stay home and prevent the spread of the Corona Virus. Needless to say, I have been keeping up with the politics and recent developments in the country and dishing out my two cents on the issues to, unfortunately, my poor family members. Sorry guys.

While a lot has been happening every day, it is indeed unfortunate that these bad ordeals have been perpetrated during our most vulnerable period. It does not help that for us to stop or minimize the spread of the virus, our safety does not depend on us and us alone; it requires the multifaceted effort of every one of our neighbours.

Who is a neighbour? That is a pathetic attempt at a joke for the learned friends. It was supposed to jog your memory of the case you had to have at your fingertips while doing the Law of Tort. Now that I have explained it, it doesn’t really seem like it… Anyway…

I am here to share my two cents on the elephant in the room… The uncomfortable scenario that has loomed in on the two arms of government. I have watched time and again as the presidents of the Executive and the Judiciary poked at one another and, I am at a lack of words. I am not here to take sides, but highlight just how much this should not be a joke or make it to ‘small talk’ within our circles only for us to take the matter lightly. While the head of the Executive arm of the government has been, for quite some time now, focused on economic development and leaving behind a legacy for himself, the President of the Judiciary has had his hands full in keeping that arm of the government afloat. This is not meant to be interpreted that the President has not had his hands full while leading the country during this crisis.

My sentiments are not just drawn from the recent jabs they each threw at one another, rather, on the role the judiciary plays in trying to create and maintain a sustainable crime-free society. While economic development is indisputably crucial to our well-being, a lot of factors must be met that would aid in achieving it; all of which can be summarized by the Sustainable Development Goals. (More information is available at <https://www.un.org/sustainabledevelopment/sustainable-development-goals/>) We easily forget that “fair and effective criminal justice systems can play a vital role in ensuring sustainable and inclusive development for all,” leaving no one behind. “Through Goal 16 which promotes peace, justice and the rule of law, the Sustainable Development Goals recognize that development efforts are closely linked with the justice sector.” This merely illustrates that the objectives of both arms of the government are interlinked.

Secondly, it was interesting to note that after the reveal of the allocations of monies to different government institutions and one could not help but wonder why there was such a difference in the allocations of monies to both the Judiciary and Parliament; irrespective of the fact that both are of the same stature as arms of government. The Judiciary has time and again cried out that it is indeed underfunded and that more monies should be allocated in order to speed up and effectively preside over disputes brought to it for resolution. Recently, I was going through a document released by the Hon. Chief Justice Maraga a while back entitled Criminal Justice System in Kenya: An Audit, I was able to understand just how much the required monies are needed, and why a deprivation of such cripples not only the criminal justice system, but the country as a whole.

Interestingly, similar sentiments were shared by Christine Mungai, (creator and editor of The Elephant) in her publications, who further examined what Judiciary budget cuts force it to do. The cuts may force the judicial officers, knowingly or otherwise, to pay more attention to petty offences which, allegedly, are easier to prove; slapping persons with fines used to finance it. This, arguably, may be the linkage as to why the Daily Nation <https://www.nation.co.ke/kenya/newsplex/why-remandees-are-granted-bail-but-still-rot-in-jail-87174> reported that even though some bail terms are payable, some remandees may not be able to meet such conditions and are forced to be deprived of liberty as an alternative. Payable but unaffordable bail terms. It may not be as far-fetched as some may presume. Imprisonment cosntitutes one aspect of deprivation of liberty and it is in penal institutions that these unfortunate persons land in.

Currently, our prison capacity is at 190.5% and overpopulation is one aspect of one of the ailments of Kenya’s Correctional System. It so bad that Mr. Omboto John Onyango opined that even in the post colonial period, overpopulation is still the root cause of decay in prisons in Kenya. Given that some historians are of the idea that prisons were purposefully established and maintained in poor state because the prisoners were mostly Africans opposed to the White Rule, what justification would we give now that we have an independent State for over half a century? Remandees constitute about half of the prison population in Kenya. If that number was reduced, overpopulation and the consequences that come with it will be reduced just as much.

Speaking of overpopulation and access to justice, did it ever cross your mind that criminal records often constitutes a significant barrier to gaining employment after release from prisons? Remember our hypothetical Old Man and some of the challenges he faced after serving his lawful sentence? (The Old Man is available at <https://matingis.com/2020/05/12/the-old-man/>) Now imagine our Old Man got a lighter sentence and was still strong enough to work. Research globally shows that employees may request to review a criminal record during the recruitment process. This more often than not, leads to the persons barred from accessing formal employment as they are seen as ‘risk factors’. Basically, this branding for life is what Mr. Muthuri Kathure (available at <https://www.nation.co.ke/oped/opinion/Improve-ex-prisoner-reintegration-system/440808-4828164-juuayk/index.html>) also calls ‘double jeopardy’. According to him, such persons are punished twice, legally for the crime committed and socially through discrimination.

If you think you are far from facing such challenges, think again. Did you know that as an average mwananchi, your chances of being arrested are higher than legislators accused of various corruption or wrongful appropriation? Yes, while the African Americans are protesting that Black Lives Matter, we here are fighting police brutality and arrests or discrimination based on class. I remember one of the first months after joining campus, my friends and I were walking back to the hostel from the stage when two armed (to the teeth might I add) persons in uniform stopped us to inquire our whereabouts. Not that we were making noise, or drunk and disorderly, we were chatting while heading to our residential area in Karen. After producing our Identity cards, both national and campus, we were let off with a warning, ‘na mjue Karen curfew ni saa nne’ (and remember, the curfew at Karen is 10 o’clock past midnight). I did not think much about it then, but looking back now, it sticks out like a sore thumb. We probably looked like students and were dressed like so. Karen is a residential high profile area and while that might be the case and security is tough in these areas; given that there was no probable cause for arrest, there is one reason that I can think of that made us get stopped that night: we did not belong. Whether we are ready to deal with the issue of discrimination due to class or not, it does not mean that it does not happen, whether knowingly or otherwise. We may not have been able to afford bail for ‘loitering’, and therefore we would probably have joined the rest of wananchis sitting in police or prison cells due to ‘payable but unaffordable’ bail terms.

Remember, as soon as you are speedily and reasonably brought before a judicial officer in accordance with your constitutional rights, you have a record. While going through the Kenya Police Service website (http://www.kenyapolice.go.ke/pages/faqs.html), I could not help but notice that “the first condition of acquiring the certificate is lack of any criminal records with the Kenya Police department.” The finger prints of the person seeking a good conduct certificate are run through the system of criminal records, and a certificate is only issued where the prints have no prior record. While many of us are lucky enough to evade the system, some of us are not, thus ‘branded for life’. Might I add the fact that with Covid-19 disrupting the economy, there is a huge chance that the crime rates will skyrocket? The very law that is meant to protect the society and persons incarcerated may fail due to force majure. We speak a lot about service delivery to the grassroots level. Now do you at least fathom how much we as the common mwananchi will be served if this issue remains unresolved?

The Ripple Effect is known to most as a causation. According to the Cambridge Dictionary, it defines it as a situation in which one thing causes a series of other things to happen. More clearly, it is ” an abstract metaphor to describe how our actions (or non-actions) reverberate throughout the physical and social world” <https://medium.com/the-abs-tract-organization/the-ripple-effect-8c8495d46554>. This entire publication illustrates just how much the situation of a lack of monies or under-funding of the Judiciary can cause. It can be illustrated by dropping a stone vertically into water and seeing the same volume of displaced water surge outwards as waves. While I am merely pointing out a series of linkages and not necessarily providing solutions, another must pick up the mantle and run with it, providing as many solutions as there can be to aid one another and our country as a whole. In the meantime, for those privileged enough, let them stay home to minimize the risk of further spreading the Corona Virus. At all times, even when social distancing, do have a mask on. While many might not be a hundred percent effective to the individual wearing it, they go a long way in protecting the rest of the persons they interact with. By putting on masks whenever we are out, we not only protect ourselves, but also the rest of our community and ultimately, our caregivers. Remember, the Ripple Effect. *wink*

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  1. Haha! It could, as well, have been written by him, so many people had the same thoughts, and I am…

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