Kenya’s justice system is clogged with past, pending and new drug trafficking court cases – effectively keeping offenders on the streets and citizens unsafe.
Before his murder, Yusuf Ahmed Swaleh, aka Kandereni or Candy Rain, heir to the vast Akasha drug empire, was often found not guilty on drug-related charges and released. On 17 March, he was kidnapped and killed by unknown assailants – while still embroiled in several drug trafficking and money laundering charges.
Nancy Indoveria Kigunzu, a renowned drug lord popularly known as Mathe wa Ngara (‘mother of Ngara’), was arrested on 21 August 2023 and charged with trafficking cannabis worth US$140 692 (KES18.3 million). She was released on cash bail of US$7 700 (KES1 million) on 20 December, and her case has still not been heard – although some of her assets were forfeited to the state as proceeds of crime.
On 10 March, life sentences were handed down to seven foreigners nearly a decade after their arrest for trafficking heroin worth US$10 million (KES1.3 billion) via the Indian Ocean to Kenya’s coastal city of Mombasa.
Drug traffickers in Kenya often use loopholes in the criminal justice system to evade prosecution and sentencing, while the illicit proceeds of crimes are used to bribe corrupt officials or fund lengthy court battles. The repeated arrest, failure to prosecute and release of well-known suspects undermines public trust in the criminal justice system and costs the state time and resources. Unless measures are taken to prioritise such cases and address corruption and other bottlenecks, Kenya’s public will remain sceptical of efforts to curb the growing drug market.
Kenya’s judicial process is guided by the principles of the presumption of innocence until proven guilty, the right to be released on bail pending a trial, the right to a fair trial, and legal representation and impartiality before the law. Enshrined in the Constitution, these principles guide criminal justice system stakeholders to approach all cases with the level of fairness and justice required.
Rahma Ramadhan, a legal practitioner and senior researcher at the Centre for Human Rights and Policy Studies, told ENACT that Kenya’s judicial process was slow due to a combination of challenges and structural deficiencies. These include lengthy trial procedures because of the rising numbers of civil and criminal cases before the court and insufficient judicial personnel to deal with these cases.
Major drug trafficking cases have additional challenges, including shoddy evidence gathering and poor presentation before the court.
A media report quotes Chief Justice Martha Koome as saying that in the 2021/22 financial year, 521 823 cases were pending before the magistrate courts – 233 177 of these having been in the system for over a year. Of this backlog, 86 854 cases, about one-third, had been in the court system for over three years.
Drug trafficking suspects often use their time out on bail to interfere with evidence and bribe the prosecution team or judge in order to evade justice. A 2019 Directorate of Criminal Investigations report seen by The Star in Kenya reveals that a ‘dozen court officials are currently under close scrutiny of investigative agencies over close links to known narcotics traffickers.’
Once their case is dismissed, or they are acquitted, most drug traffickers simply continue with business as usual. Many are subsequently rearrested and prosecuted. A typical example of this is Scola Namunyu Imbiti, who was arrested at an airport cargo centre in January 2010 with 21 kg of heroin. In 2011, she and two other foreigners were accused of credit card fraud. Both cases were dismissed due to lack of evidence. In January 2024 she was finally jailed for 15 years for drug trafficking.
This needs urgent and consistent action to reduce the backlog and proceed more swiftly. However, there are other options that could be considered, and that would complement the court-based processes. Criminal justice stakeholders can enhance ongoing efforts to decongest the courts by promoting alternative dispute resolution mechanisms for less serious and non-violent cases and using autonomous Alternative Justice System Centres. These are based on customary and traditional alternative dispute resolution mechanisms. They are far more accessible and affordable than the courts and are currently being promoted by the judiciary to reduce backlogs.
The judiciary should also redouble its efforts to leverage technology and bridge the geographical divide between urban and rural access through its virtual and mobile courts launched and used during COVID-19. So too, establishing dedicated courts with specialist prosecutors may decrease the time for cases to travel through the criminal justice system and increase prosecutorial success rates for drug trafficking cases.
Technology can also help enhance case management – an electronic case management system was introduced to Kenya’s courts in 2020 to ease the burden of bureaucratic paperwork and associated processes that lengthen access to justice. The slow pace of system implementation means the impact of this system is yet to be felt.
Key to the timeous conclusion of drug-related cases is the proactive role of the police and prosecution. Several cases are dismissed due to insufficient evidence gathered by the police, poor case preparation and weak presentation in court by prosecutors. The judiciary should invest in continuous skills development so that its court officials and prosecution team can address skill inadequacy.
Allegations of corruption in drug-trafficking cases persist. Decisive action against accepting bribes, unnecessary time-wasting, poor investigations and case management, and burdensome administrative processes are needed to shift the current mistrust by citizens in the criminal justice system.
Halkano Wario, ROCO, East Africa
Image: Kenya Judiciary/Facebook
