Kenyan prisoners take the law into their own hands By Catherine Fellows

BBC Africa, Kenya Published duration 12 July 2013

In Kenya, prisoners are taking the law into their own hands and using it to get out of jail.

"Last week Abdi's sentence was reduced from death to seven years. We also helped another inmate win his appeal, and he has already left," says Douglas Owiyo, one of a team of prisoner paralegals at Shimo La Tewa maximum security prison in Mombasa.

Since 2007, when he and a dozen other inmates were trained in the law, they have launched more than 3,000 successful appeals, even though they are not fully qualified lawyers

image caption Abdi Moka (L) says he owes the paralegals, like Douglas Owiyo (R), his life

In Kenya, the majority of people accused of committing a crime face court without a lawyer.

Abdi Moka was one of these.

When he found himself before a judge facing a charge of robbery with violence, he had no idea what to plead or how to defend himself.

Robbery with violence carries a mandatory death sentence in Kenya, and before he knew what was happening, Moka was on death row.

Owiyo and the other prisoner paralegals drafted a written submission which Moka presented at his appeal. They won.

The appeal judge agreed that Moka should have been charged with a lesser crime and given a much lighter sentence.

"When I was sentenced to death I thought I would lose my mind," Moka remembers.

"But now, thanks to the paralegals, I have hope again."

'Intelligent questions'

Mombasa's chief magistrate, Stephen Riech, admits that the lack of legal representation for defendants leads to injustice.

"There is a lot of it because, for instance, if someone is charged with being in possession of a weapon with intent to steal, he may say: 'Yes, I was found in possession of a weapon,' and admit [that].

"But the catch is he had no intention of stealing. If he knew some basics he could not have done that."

He says the impact of the prisoner paralegals can really be seen when defendants come to court.

"Once they have exposure to the paralegals they know their rights," he says.

"They ask for the statements of the witnesses, they sometimes ask for adjournments so they can prepare their defence.

"I can see them asking intelligent questions to the witnesses who are testifying against them.

"Some even make submissions on points of law, which to my mind is a great improvement."

The organisation responsible for the training of prisoner paralegals in Kenya is Kituo Cha Sheria.

Set up in 1973 by a group of Kenyan lawyers concerned by the lack of legal help available to the poor, Kituo Cha Sheria has now evolved into a multi-faceted legal aid and advocacy group.

It campaigns on issues such as abolishing the death penalty, which is still in place in Kenya, although no-one has been executed since 1987.

Following the success of the original prisoner paralegal training in Mombasa, Kituo Cha Sheria has now trained teams in Kamiti Maximum Security Prison and Langata Women's Prison in the capital, Nairobi.

Lifer Joseph Karanja, who heads the paralegals at Kamiti, says that in the first nine months since the training, his team won 120 appeals.

This is confirmed by prison officer Senior Sergeant Benson Ngui, who adds that, prior to the training, he would have expected no more than one or two successful appeals in a year.

'Better than lawyers'

So how do the prisoner paralegals manage to win so many appeals?

They told me they used the failings of the system, exposing shoddy investigations by the police and incompetent rulings by magistrates.

"We try to prove the trial wasn't safe, for instance in a case of defilement [child sexual abuse], the victim was never examined by a doctor, and the only evidence was the testimony of the mother who may have a grudge against the accused," said Denga John Lenda, the deputy head of the paralegal team at Kamiti.

"We don't mind if you committed it or not, we are trying to argue with the evidence the court adduced."

Karanja is also proud to report that even those prisoners who do have lawyers are choosing to dismiss them and rely on fellow inmates instead.

Kenya's constitution says that citizens have the right to a state-funded lawyer "if substantial injustice would otherwise result".

Allan Nyange, who works as an advocate for Kituo Cha Sheria, explains that even when these state lawyers are provided, they can sometimes be more of a hindrance than a help.

"This is a file that is forced on an advocate, so you can imagine [they are] not interested in criminal things, [they] have other better, well-paid briefs, and this is a matter that is wasting [their] time," he explains.

"So in most cases, most lawyers who are given those cases do not bother, and they would look for any opportunity to ask for an adjournment."

For Mr Nyange, there is in no doubt about the effectiveness of the prisoner paralegals.

"I'll tell you for a fact that most of them are better than lawyers, trained lawyers," he says.

"They have all the time, and they are motivated by the fact that that is how you get people off the system and that is how you might be able to go home."

But what happens when these paralegals do get out of prison?

Dismas Omondi was one of the first batch of paralegals to be trained in Mombasa back in 2007.

After more than 13 years on death row, he finally won his appeal and was released in 2010.

He is personally credited with helping more than 250 fellow inmates get acquitted.

Since his release, he has been working at Mombasa's High Court - but not in a way that puts his legal knowledge and experience to good use.

He cleans the public toilets.

'It's a calling'

Mr Omondi needs to earn a living, and, at present, paralegals like him are expressly forbidden from charging for their advice.

Kenyan lawyers have expressed concern that paralegals could start passing themselves off as fully fledged lawyers to unsuspecting members of the public, and this is supposed to deter them.

But the prisoner paralegals have an ally in Kenya's Chief Justice Willy Mutunga.

A reformer and human rights activist, he was one of the founders of Kituo Cha Sheria.

"From what I've seen of those paralegals in those prisons, it's a calling - I've no doubt in my mind they can do a good job," he says.

"If you are talking about justice, and somebody comes to my court and says: 'I don't have a lawyer but I have this paralegal and he's going to represent me', it should be the just thing to do.

"We've got to find ways of getting these paralegals into our courts.

"The law society should see these guys as reinforcement.

"The paralegals in prisons and outside prisons must play a role in the administration of justice."