Close Icon

Punitive sentencing for petty offences; vestiges of colonial times.


Punitive sentencing for petty offences; vestiges of colonial times.

Petty offences are the leading cause of congestion in most prisons today. As the UN Office on Drugs and Crime put it simply: “imprisonment is overused”. 

Punitive measures perpetuate a vicious cycle of poverty: rising unemployment rates and struggling economies are exacerbated when thousands of people are removed from active society. Nullifying progress towards a stronger and more active labour force. 

Look inside prisons and you’ll think it’s illegal to be poor. 

In East Africa, young people are persistently caught up in charges of drug trafficking, loitering, and pickpocketing. Now, with new government restrictions in place during the Covid-19 pandemic, even more people are coming into conflict with the law. 

For many people like Geoffrey Ndugudu, James Tuti, and Samuel Mungai Mbugua, committing a petty offence (a minor offence for which the accused may be tried at common law without a jury) means paying the highest price. 

In Uganda the adoption of strict measures to curb mass gatherings and the spread of the Covid-19 pandemic has a ripple effect. Those most affected by the laws – people working in the informal sector, with little income - have deemed them as unfair.

Harsh and unforgiving security operatives have been accused of unjustly implementing the new measures.   

Geoffrey Ndugudu is a 52-year-old father of seven in Maddu in Gomba district. Arrested after being found outside his home past the 7pm curfew. For many, a surreptitious payment can satisfy the forces and stop your arrest. But Geoffrey didn’t have the money to pay a bribe to secure his freedom. 

“Being a charcoal burner, I spend my time in the forests cutting trees to produce charcoal which I sell to get money to provide for my family,” Geoffrey explains. “This work requires frequent movements from home to the forest where I put up the charcoal piles.

“On one ill-fated day, I delayed reaching home early because I had stopped over to buy a drink along the way. Before reaching home, police arrested me claiming that I had faulted the presidential directives on Covid-19.”

Working in the informal sector (a part of the economy that isn't taxed or monitored by any form of government), Geoffrey is unable to access government loans or tax benefits which could support his family during the pandemic. So when he was taken to Kitwe prison, where he spent more than four months on remand, his arrest had a knock-on effect on his family.

“I have a large family who all depended on me for food, medical care, housing, and clothing. My wife had to shoulder all responsibilities by herself. I lost hope and I was devastated.”

Fortunately Geoffrey was able to access our legal services. “I was happy to hear paralegal officers teach inmates about the law on court etiquette, right to a fair trial and appeal in the awareness sessions conducted by Justice Defenders paralegals. This gave me hope that I could access justice in the shortest time possible. Justice Defenders assisted me in going about my case which the court dismissed.”

“I couldn’t believe that I would be released in such a short time given the fact that I was in remand. I’m glad that Justice Defenders secured my freedom to go home and reunite with my family.” Geoffrey explained with joy as he re-joined his family.

Geoffrey (centre) with the two paralegal prison officers who supported him, Prosperous Asiimwe (left) and Ninian Musinguzi (right).

The punitive nature of Covid-19 restrictions aren’t a new phenomenon.

Here, Draconian laws still apply, yet to be reviewed for the 21st Century. Vestiges of colonial times, the laws often criminalise and continue to marginalise the people with least in society. 

“Laws are spider-webs through which the big flies pass and the little ones get caught” -  Honore de Balzac, a law trainee who became weary of injustice and went on to become a famous European writer

In Kenya The Narcotics, Drugs, and Psychotropic Substances (Control) of Kenya Act is stringent and unforgiving. The law often disproportionately affects the young and the poor. Many of whom lack access to a defence. 

James Tuti knows just how harsh the law can be. The 23-year-old was initially stopped for not wearing a mask in public during the pandemic. After being searched, he was caught in possession of cannabis. He was charged with possession of narcotics and spent several months in prison. Justice Defenders paralegal Richard Rono assisted James to argue his own case at his hearing. Fortunately, he was able to secure his release.

Samuel Mungai Mbugua is another young man who has experienced how quickly you can end up in prison in Kenya. The husband and father of two was accused of cultivating cannabis. His uncle reported him after he discovered Samuel planted cannabis alongside his maize crop. While imprisoned, Samuel was able to access legal services from our paralegals, who helped him mitigate his case. Through presenting the fact that he was the sole breadwinner for his family, Samuel was able to secure his release on a 3-year non-custodial sentence. 

The unbalanced scales of justice leave society disenchanted. They no longer symbolise the ideals of fair distribution of law, with no influence of bias, privilege or corruption.

In 2020 in Uganda, prisons were at an occupancy level of nearly 300%. While in the same year in Kenya the official capacity of the prisons was 26,837, however more than 43,500 people were held. 44% are pre-trial detainees, who have not yet been convicted or even been heard. With an estimated 15,000 lawyers and only a small portion of those practicing criminal law, 80% of people in prison won’t ever meet an attorney.

Suspects are detained in prison almost automatically once they are arrested. Whatever the offence. Some, yes, are guilty. Many are poor, vulnerable, and unjustly targeted.

But can we reimagine a fairer world together. Where the law serves and protects all.

Justice Defenders legal offices remain open to offer legal services to everyone in prison, no matter the length of their sentence or their accused crime.

Find out more about Justice Defenders and our work here.