OPEN DOOR POLICY, THE RIPPLE EFFECT
The thought of detention, comes with the denial of freedom to move and associate with whomever we choose is tormenting enough, yet it is not far-fetched for one to wear such shoes. Picture this. You have been arrested, flogged and detained to process trial, in a justice system functioning within a Constitution selfish of liberties and rights, intimidation and debilitating attitude of human rights. This is Kenya before 2010.
Despite this unresponsive legal and policy scenario, that had engineered, ingrained, entrenched and protected grave human rights violations in Kenyan prisons, there emerged the visionary Commissioner of Prisons Abraham Kamakil who in the year 2000, introduced the “Open-Door Policy.” The Policy aimed to invite stakeholders and interested parties into deliberate partnership with the Prisons department to strategically improve the services, image and conditions of detention. This would later reduce incidents of corporal punishment, unexplained deaths, torture and other degrading inhuman treatment of the inmates, prominent in 1990s and early 2000s.
Consequently, in 2003 Legal Resources Foundation Trust (LRF) was motivated by a network of state and nonstate actors, to pioneer the first legal aid project in detention facilities dubbed as the Kenya Prisons Paralegal Project (KPPP. The project employed a civilian paralegal’s model in the prisons, a concept borrowed from Malawi. LRF, with the support and goodwill of the prison administration, started operations in Nairobi Remand and Allocation Prison, Thika, Langata, Kisumu, Kamiti, Machakos, Meru and Nakuru Prisons also extending the services to Children Remand Homes within these areas. Our mandate was to provide legal aid and advice for inmates, monitor and document human rights violations, conduct follow-ups in the various justice agencies on issues affecting the inmates, and link inmates with their relatives.
First, the paralegals encountered challenges in a system that was rigid, unaccustomed to interaction with Civil Society Organisations and especially those with a Human Rights background, the main hurdle being attitude change for officers who would start to be held to account for their actions. Congestion, Corporal punishment, inhuman search practices against Prisoners are some of violations paralegals had to deal with. The reform agenda had just started.
LRF paralegals were assigned prison liaison officers who would provide security in their work within prisons. LRF trained the officers as paralegals with a view to enhance reach and effectiveness of the model. This concept became popular, increased in demand and shaped the careers of some of these officers. LRF has trained over 50 prison officers as paralegals, besides training thousands on Human Rights Standards. LRF attributes the institutionalization of Human Rights Offices in the Prisons to its contribution in the reform agenda. The prisons Service has achieved major milestones in improving the facilities and has institutionalized training on UN Standard Minimum Rules on Treatment of Prisoners, popularly referred to as the Mandela Rules.
Second, the justice system was not well coordinated resulting in some of the prisoners ‘getting lost’ in the system with no hearing dates as a result of ‘lost’ or misplaced court files, pending reports from other agencies among other administrative and human driven errors. This would require paralegals to access the court registries and work with the courts to ensure that Prisoners effectively got their right to be heard.
Third, legal illiteracy was extremely high among the inmates, just as it was amongst the majority of Kenyans, and the general lack of litigation skills to confront the justice system. For instance, only those accused of murder were assigned legal representation, leaving the rest to navigate the system by themselves. A majority were too poor to afford bail/bond to secure their liberty and the thought of hiring an advocate leave alone affording one was just but a mirage. Through paralegals, LRF has been able to educate thousands of Prisoners and facilitated their access to justice.
In 2004, LRF introduced the Access to Justice Committees (AJCs) concept, currently referred to as Court User Committees (CUCs) to promote dialogue among stakeholders in the justice system and finding homegrown solutions to problems facing the justice system, and ultimately inmates. This concept was piloted in Thika and was later adopted by the Judiciary due to its effectiveness. The CUC model eventually was the brainchild behind the National Council on the Administration of Justice (NCAJ) which is now recognized under the Judicial Service Act. In 2016, in collaboration with the NCAJ, LRF conducted an audit of the Criminal Justice System focusing on case flow management and conditions of detentions. The report was launched amid pop and color and was the basis behind the gazettement of a multisectoral committee (The National Committee on Criminal Justice Reforms- NCCJR) mandated with comprehensive review and reform of the criminal justice system in Kenya. The report is a pacesetter and continues to shape the criminal reform agenda in the country and beyond. In fact, LRF has been contacted not once by overseas learning institutions to share the model behind such a successful and comprehensive study.
The many first systemic or infrastructural changes besides consistent human centric attitudes and environments, especially an increasingly humane justice approach during the informal reform process, under the Paralegal project within the criminal justice system provided foundational and philosophical urgency to undertake holistic review of the mother laws and policies of the entire justice system. Our work provided the basis upon which Article 48, 49 and 50 of the current Constitution. Our work under paralegal project, having exposed inequality before law and rampant torture inspired the debate on why Article 27, 28 and 29 were so central to the human rights framework in the Constitution, similarly furthered the power to challenge any threat to the Bill of Rights as captured at Article 22 (1).
LRF continues to partner with the Prisons department to build capacity for prison officers on the mechanisms enabling legal aid, integration of UNSMR, review of policies, research, publication of Information, Education and Communication materials, alongside increasing understanding and resilience on emerging thematic subjects such as Preventing and Countering Violent Extremism amongst others. Increasingly, LRF is consistently fronting fragile infrastructural reforms that touch on the mental health of Prisoners as well as Prison Officers, similarly pushing for responsive facilities for offenders, irrespective of their age, gender or race, facing such challenges.