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Breaking Barriers: New Bereavement Protocols for Incarcerated Individuals


Breaking Barriers: New Bereavement Protocols for Incarcerated Individuals
Prison academy gate

In Kenya, many individuals in prisons are victims of circumstance. For those who come into conflict with the law, a disproportionate number do so due to reasons of poverty. The ripple effects may lead them to stand before the courts with little to no legal knowledge. 

A young unemployed mother may be unable to pay her rent and facing eviction, unable to defend themselves in court. Others may find themselves falsely accused of a crime because they are unable to pay a bribe or protection money. Or they face criminal behavior charges due to an addiction or mental health issues that they have been unable to resolve. 

Most prisons in Kenya are hidden places, unseen and rarely talked about. This often becomes the fate for thousands of people in incarceration. Once in prison, they find themselves faced with the harsh realities of life while in confinement. Their dreams dim and connections fade away as those living beyond the prison walls seem further away with every passing day. 

Imagine receiving the news that a parent has suddenly fallen ill, and you are unable to visit and care for them. Or learning that your mother has passed away unexpectedly and is no longer here. Hearing about the illness or death of a close family member while in confinement can take a severe toll on one's mental health. Being denied the chance to say goodbye is even more heart-wrenching.

Paralegal Moses Dola seated at Kiambu Prison.

We are living amidst a global justice crisis. Governments now recognize the gravity of the issue and have committed to achieving the UN’s 2030 Sustainable Development Goals (SDGs). Specifically, SDG16 focuses on ensuring access to justice for all people and building effective, accountable institutions at all levels to create peaceful, just, and inclusive societies.

However, in the meantime, many individuals remain behind bars, awaiting trial or serving their sentences. While in prison, they are separated from society, cast away from their communities, and rarely engage with their loved ones. When a family member falls ill or passes away, incarcerated individuals in Kenya are often denied the chance to say their final farewell—until now.

For many, grief and loss are overwhelming and difficult to bear. In July 2021, Justice Defenders paralegal Moses Dola faced this heartbreak when his mother passed away at the age of 67 while he was serving a ten-year sentence at Kiambu Medium Prison. Moses was devastated, grappling with the emotions of losing his mother while still in prison. Hoping for a chance to say his final farewell, he requested permission from the prison authorities to attend her funeral but was denied.

As the weight of grief settled on him in the months following his mother's burial, Moses sought redress through the courts. In December 2022, he drafted Petition E 542 of 2022, aiming to improve bereavement protocols for incarcerated individuals. Collaborating closely with Legal Officer Joseph Karanja and paralegals in Kiambu and Naivasha Prisons, they pursued better bereavement protocols. The petitioner’s argument was anchored in key legislation, including:

  • United Nations Standard Minimum Rules for Treatment of Prisoners 
  • Persons Deprived of Liberty Act No. 23 of 2014 
  • Act 24 of the Kenyan Constitution 

Pleading with the court, the petition sought relief on several key aspects:

  1.  The Court be pleased to hold and declare that all sentenced prisoners and pre-trial detainees continue to enjoy all rights and fundamental freedoms in the Bill of Rights, including sepulchral rights as prescribed under Article 51 of the Constitution and in conjunction with Rule 70 of the Nelson Mandela Rules.
  2. The Court be pleased to declare that all sentenced prisoners and pre-trial detainees have the right to mourn, take part in the funeral, and attend the burial of their loved ones.

Fortunately, the case was strongly supported by jurisprudence that grants incarcerated individuals the opportunity to attend the funerals of loved ones. Notable cases included Gunasekaran v. Inspector General of Prisons, Madras High Court, and the Code of the Enforcement of Sentences 1969 of Poland.

The prosecution questioned the practicality of granting the petitioner's requests, highlighting security concerns and potential disruptions to prison operations. They also raised issues of preferential treatment among inmates and staffing constraints for providing funeral escorts. Counsel emphasised the need for security measures and the discretion of correctional authorities in determining the appropriateness of temporary releases.

Victory for the petitioners.

On February 23, 2024, Hon. Judge Lawrence Mugambi ruled that incarcerated individuals and pre-trial detainees have the right to attend the burials of close family members unless there are compelling reasons to deny such permission. In his judgment, he emphasised that this right is anchored in the principle of human dignity. However, the court noted that this right is not absolute and must consider factors such as previous escape attempts or a propensity for violence by the person in prison.

This landmark ruling in Kenya ensures that thousands of incarcerated individuals will now benefit from established bereavement protocols, allowing them the chance to bury their loved ones. The petition’s outcome significantly uplifts the welfare of pre-trial detainees and prisoners, offering them a vital opportunity for closure with family members who are critically ill or have passed away.

We are a community of capable defenders with a unique perspective, because our hearts have been formed by our own experience of suffering. We are ready and eager to work towards the equal application of the law for those in defenceless communities like our own. Because we recognise our shared humanity. As we drive change in the courts from beyond the prison walls, we remain determined to improve access to justice for all. 

To help steer change with us, donate to support our mission here.