, NAIROBI, Kenya, Aug 24 – “”Sasa tufanye nini?” (What do you want us to do?),” it is a question one is likely to encounter if found on the wrong by authorities.
One that echoes in the minds of many petty offenders, who are left with two options; giving a bribe or going to court.
And as established by Capital FM News, it is a booming business for authorities dealing with petty offenders.
Worse enough, the rot has spilt over to the courts, where ‘justice’ comes packaged in impunity.
Whether it is true that a section of Kenyans loves the ‘easy’ route of paying a bribe once they commit an offence or not, can only be established through a scientific study.
But it is a fact that several petty offenders in the country part with ‘a facilitation fee’ for them to secure freedom.
Several case studies, as established by Capital FM News show that some people are willing to bribe a police officer with a higher amount, for committing a petty offence, than what they are likely to be charged in court.
Others pay what they term as more ‘pocket-friendly police fine’, aware that though a petty offence, it attracts a punitive punishment.
Like in a case of boda-boda rider, who instead of going to court and be charged with say obstruction, whose fine can be as high as Sh40,000 gives a lesser amount to authorities.
Some legal and human rights experts interviewed by Capital FM News differ on what drives the appetite of the authorities or the urge by a section of accused people to buy freedom.
Is it a case of ethics or a deliberate move by the system to fleece its subject?
-We are their cash cows-
For weeks now, County authorities and motorbike riders have engaged into what seems to be an endless game of hide and seek.
While County authorities are acting on a directive to kick them out of Nairobi Central Business District, the motorbike riders have shown resistance and say they just want to continue earning an honest living.
The operation has been characterized by arbitrary arrests of the boda-boda riders and according to those who spoke to Capital FM News, police and county askari’s have made them their cash cows.
Only a few, they say go to court.
Johnson Macharia,33, a boda-boda rider based in CBD is a victim.
“When you are arrested, whether in the morning when you have earned nothing or in the evening, it is obvious you are going to part with some cash. Like in the last two weeks, I have paid almost Sh10,000 to police and County Askari’s,” Macharia, a boda-boda rider said.
“I don’t want to be taken to court since the fine will be high and yet I have done nothing. Mostly we are accused of obstruction. Where will I get Sh40,000?” he asked.
Samuel Njoroge, 29, says he once went to court but though a good decision, he regrets.
“I served three months in jail since I did not have the amount I was fined,” he said before he quickly drove off, after he saw an approaching County vehicle.
“Are we terrorists?” Mark Otieno, a rider formerly based along Moi Avenue posed.
“This is an abuse of human rights since we just want to earn a living. Unemployment is so real in this country, but the Government doesn’t seem to know this.”
He adds, “This too is our country. It is the Government that has allowed the motorbikes to come. Do they want us to become thugs?”
A frustrated Otieno narrated the challenges of being a boda boda rider within Nairobi’s Central Business District.
“Huwezi toboa bila kulipa hongo hii town (you cannot make it without paying a bribe in this town)” he lamented.
Once arrested, he says, a fact established by this reporter, most petty offenders are bungled inside police or the county vehicles.
But they are not immediately taken to custody.
Not that fast.
“There are negotiations inside the vehicle and only those who don’t have the money or are willing to go to court remains. They (authorities) even do several rounds within the town as they wait for someone to be sent money which is then transferred to a specific number,” he revealed.
For now, they have termed Governor Mike Sonko’s directive as not implementable, since it risks rendering hundreds of youths jobless, in a country where levels of unemployment are worrying.
The directive, they say is only good of law enforcers, cashing in from their miseries.
Police have since raised concern with Sonko’s administration, seeking clear guidance on how to implement the operation.
“We want to address these concerns, but we need a proper working plan. Yes, we are chasing the boda-boda riders out of CBD, but to where?” Central Police boss Robinson Thuku posed.
-Corruption in the Judiciary? –
Another victim was early this month arrested for driving a vehicle with a worn out tyre.
He was taken to Kibera Magistrate Court where he pleaded guilty and was fined a Sh30,000.
“I had been told to expect a fine of up to 10,000. I was gob smacked,” James Wariero narrated of his ordeal.
But instead of using the Judiciary pay bill number, he was given an agent number where he transferred the cash.
“At the most benign, there is a problem with how the payments are made possibly set up to profit private enterprises from transaction fees instead of using the judiciary Pay bill. At worst there is a suspicious combination of harsh hefty fines and questionable handling of fines paid,” he said.
“I was lucky to be able to pay and get out of there. The judiciary keeps parroting its commitment to non-custodial sentences and strengthening the rule of law. You won’t get that by jailing touts for three months and giving people incentive to pay bribes on the road and avoid court.”
In the same court, he witnessed 7 other people who were accused of touting slapped with a fine of Sh40,000 each or 3 months in jail.
-Experts input –
According to a report by the International Commission of Jurists titled “Poverty is not a crime; Decriminalize petty offences attracting criminal sanctions”, criminalization and punishment of petty offences in the country, “has for over the years provided a basis for gross violation of human rights of the poor and vulnerable populations especially those in cities and major urban centers of Kenya.
Most affected according to the report and as established by Capital FM News are hawkers, public service vehicles touts and commercial sex workers.
“The enforcement of these offences subject ordinary civilians, many of whom are unaware of their rights, to unparalleled human rights abuses. These include arbitrary arrests, unfair bail terms, irregular fines, irregular sentencing practices; profiling and stigma…” reads the report.
Those unable to pay, are usually detained mostly on trumped-up charges such as idling, loitering, drunk and disorderly conduct among other petty offences.
“The result is exposure of otherwise innocent civilians to hardened criminals…” the reports point out.
Kenya Human Rights Commission Executive Director George Kegoro says the problem is with the law enforcers.
“What has happened is the problem of impunity in the country,” he told Capital News.
He says, “investigations and prosecution are not all competently handled.”
Instead, Kegoro says the system choose to increase of fines without addressing the obvious loopholes within the criminal justice system.
“The moment you increase the fines, without addressing the challenges around investigation and prosecution, it only increases the price that you pay to the corrupt chain to secure your freedom,” he asserted.
While the ICJ report calls for a review of the law like some sections of the Penal Code that criminalizes petty offences, Kegoro is of a different opinion.
Specifically, the rights group report points out sections 175(1), 182 and 193 of the Penal Code as offensive to the Constitution.
“There are no quick fixes to the problems we are talking about. There is a need for reforms to ensure there are certainties at every level,” Kegoro said.
Bribery and extortion surrounding the punishment of petty offences have evolved into a political economy where offenders are punished so harshly.
This means paying a bribe is a ‘better option’, instead of being dragged through a largely unjust system, “that deprives people of their dignity at all the stages from arrest and detention to trial and afterwards.”
According to Nairobi based human rights activist Wanjeri Nderu, people pay bribes because “our court process is fraud.”
“The amount of time it takes before you even go to that court, the corruption in court where justice is not served either. Some of the fines are too punitive.”
Thousands of Kenyans are serving jail terms since they are often unable to pay the hefty fines, she said.
“Maybe there should be a review of some of these laws and also look for a way to deal with petty offences specifically,” she said during an interview with Capital News.
Law Society of Kenya Vice-President Chiggai Harriet agrees that several statues should be reviewed, to be aligned with the constitution.
“Corruption is an ethical issue highly pegged on an individualistic character. If you are one corrupt person, it does not matter what rules are put in place,” she said.
According to her, some of the fines are punitive “so that you don’t even think of committing the offence.”
Whether it is the law or the system, it is clear a section of the populace, specifically the poor continue to feed the corruption dragon, feeding on them.
As a few accumulate wealth out of those found to have committed petty offences, the hefty fines seem not to address the real problem.