Imagine being imprisoned while dealing with a mental illness. Then imagine serving an indefinite sentence. Not knowing when – if ever – you would be released.
This has been the reality for many people trapped in Kenya’s criminal justice system.
The outdated system often serves the rich and able in society. Disregarding the poor.
People with mental illness who had been convicted of a crime were committed to detention at the President’s pleasure. A macabre term, meaning the defendant does not have a defined sentence. People incarcerated under the President’s pleasure could be considered for a presidential pardon. But rarely does this materialise.
With an already overburdened court system and little to no access to legal representation, many remain in abysmal conditions within the overcrowded penal system. They are often forgotten behind the prison gates, some serving up to 25 years.
Meet the paralegals ensuring this never happens again:
Our paralegals have been witness to these long, undefined detention periods. Some were imprisoned themselves under the President’s pleasure.
It was evident to them that imprisonment at the President’s pleasure was a clear violation of the UN Convention on the Rights of People with Disabilities. People with disabilities have the right to freedom from torture or cruel, inhumane or degrading treatment or punishment.
Inhuman treatment: that which causes severe mental or physical harm.
Degrading treatment: that which is grossly humiliating and undignified.
Once defenceless, now fighting for reform.
Armed with legal knowledge, graduates from Justice Defenders’ University of London degree programme set to work. Isaac, Philip, Peter M., Peter K. and Hesbon petitioned the Kenyan High Court in 2020, challenging the treatment of people with mental illness.
Petition No. 226 presented the cases of co-petitioners Isaac Makworo Momanyi, James Kioko Muli, Benard Muiruri Kirong'o, Patrick Kang’ethe Irungu and Ibrahim Hassan Kiromo. Currently incarcerated at Kamiti Maximum Prison, the co-petitioners have served a combined period of 40 years in prison at the President’s pleasure.
Responding to global calls for disability rights.
With a greater international focus on mental health, the petition called upon the courts to improve the treatment of people with mental illness. Men imprisoned at the President’s pleasure are often locked up almost automatically when they are arrested. Some, yes, are guilty. Many are poor and vulnerable to mistreatment.
To ensure justice is served fairly, courts must determine if an individual is “gravely disabled” or a “danger to others”. Appropriate treatment and rehabilitation options need to be prioritised above the archaic reliance on imprisonment.
According to the National Conference of State Legislatures, “56 per cent of state prisoners and 64 per cent of jail inmates have had a mental health issue.” The impact of sentencing on people with mental illness within East Africa hasn't been studied. What we know is that overcrowding and lack of access to legal representation compounds the challenges.
A 2015 report by Kenya Human Rights Commission found that 55,000 prisoners are held in just 118 facilities. This petition, as well as pre-arrest interventions, could be revolutionary in improving the care and treatment of people with mental illnesses within the justice system.
A historic win.
In a ruling on 3 February 2022, High Court Judge Justice Anthony Mrima stated: “An accused person who is tried and convicted of a criminal offence but is found to have been mentally unsound at the time of committing the crime, is a person with disability.
“Their imprisonment at the president’s pleasure is unlawful to the extent that it violates the concept of separation of powers and the principles of constitutionalism under the repealed constitution and the constitution of Kenya, 2010.”
He ruled: “A declaration hereby issues that no court of law shall henceforth commit any person facing a criminal trial found to suffer from mental challenges to any prison facility in Kenya.”
The ruling will mean that people like Rose who has a mental illness will not be needlessly imprisoned. Like many mothers across the world, Rose experienced depression. Just days after giving birth, she was not afforded the luxury of a health examination. Instead, she was charged with attempted murder. Read how we're fighting for the rights of mothers with postpartum depression.
After spending 11 years in prison, one of the petitioners Isaac Kimaru Ndegwa is now a legal intern at Justice Defenders. He served time alongside many men incarcerated under the President’s pleasure. Which made him adamant the criminal justice system in Kenya needed to change.
Watch the video below to follow Isaac’s journey from the day he was released in August 2021, until he learned his petition was successful:
Speaking about the ruling and the impact it will bring, Isaac said: “The success for the persons with mental challenges has given them a voice and a chance to be heard. Their silent defenceless* voices can now be heard."
This petition is set to have a ripple effect, benefiting not only the petitioners but also the community. Families stand to be reunited. Society can trust that their family and friends with mental health issues will be equally protected by and accountable to the law. Making for a more just and fair society.
* Justice Defenders uses the following definition of defenceless:
1 Those incarcerated without legal representation. 2 Groups at disproportionate risk of conflict with criminal law by the nature of their status, race, or profession.
Daring to believe in global reform.
The criminal justice system in Kenya often passes judgement on people’s lives. People with limited incomes, disabilities or other nationalities can be seen as having little value in society. This historic petition challenges those norms. It demonstrates that the poorest people, most often left behind, can be agents of change.
But injustice is not an African problem. There are flawed justice systems worldwide. The U.S. has the world’s highest prison population per 100,000 inhabitants.
Imagine a world where the people most subjected to injustice are heard.
We’re not just imagining; Justice Defenders is proactively putting people with experience of injustice at the centre of global justice narrative.
Dare to believe that you too can play a part in creating a world where justice exists for everyone.