By Justus Jeffery Olaka
A committal to a civil jail is where a judicial officer or judge sends a borrower – sued by a lender – to jail, usually for inability to pay a debt owed. It is a kind of arrangement where the lender is obligated to pay the government for each and every day the debtor stays in jail. Some of the reasons why one may be committed to a civil jail include, inter alia, failure to pay: money one agreed to pay if someone they know was on bail and did not turn up in court; money called fines or debts; maintenance money to look after their children; or failing to honour court orders.
Arrest and committal of a debtor to a civil jail is one way of executing a decree as provided for in the Civil Procedure Act. Koome, J., in the case of “Re the Matter of Zipporah Wambui Mathara” stated that an order of imprisonment in civil jail is usually meant to punish, humiliate and subject the debtor to shame and indignity due to failure to pay a civil debt, as a motivation for the debtor or his family and friends to pay up the debt. The Act states that the court may, on application of the decree holder, order execution of a decree in various ways, among them arresting and detaining the debtor. In addition, the Civil Procedure Rules also provide that subject to the provisions of Section 38 of the Civil Procedure Act, every decree for the payment of money, including a decree for the payment of money as an alternative to some other relief, may be executed by the detention in prison of the judgment-debtor. The lender will have to convince the court that indeed the debtor should be committed in a civil jail by putting forward grounds in support of his case.
These grounds are provided for in the civil procedure act to include, inter alia, the following. One, that the judgment-debtor, with the object of obstructing or delaying the execution of the decree, is either likely to abscond or leave the local limits of the jurisdiction of the court or has after the institution of the suit in which the decree was passed, dishonestly transferred, concealed or removed any part of his property, or committed any other act of bad faith in relation to his property. Two, that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree, or some substantial part thereof, and refuses or neglects, or has refused/failed to pay the same. Three is that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.
However, courts are usually not quick to order for a debtor to be committed to a civil jail before giving him an opportunity to show cause why he should not be committed to civil jail. Where s/he is unable to show sufficient cause or fails to make an appearance in the court on the specified day, the court has no option but to give the order committing him/her to a civil jail.
The Constitution imports principles of international law as part of the Kenyan law under Article 2 (5) and (6), which provide that any treaty or convention ratified by Kenya shall form part of the law of Kenya. Koome, J., further reiterated that the Constitution provides that any treaty or convention ratified by Kenya shall become part of the laws. He further said that the provision imports the treaties and conventions that Kenya ratified, and in particular the United Nations International Convention on Civil and Political Rights, ratified in 1972. He quoted Article 11 of the Convention, which states: “…no one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation, i.e. inability to pay a debt. This decision has since been criticised by many scholars, who aver that the judge erred when he said that a convention was ratified in 1972 forms part of the Kenyan law as per the provisions of Article 2 (6). Many scholars hold the opinion that the effect of Article 2 (6) of the Constitution is only with respect to those treaties and conventions ratified by Kenya after the promulgation of the Constitution of Kenya, 2010.
In addition, the Constitution provides that “no one shall be deprived of freedom arbitrarily or without just cause or treated/punished in a cruel, inhuman/degrading manner or subjected to torture in any manner, whether physical or psychological”. It also states that a person shall not be held in slavery or servitude. However, as I alluded to earlier, before a debtor is committed to civil jail, s/he is given the opportunity to show just cause for failure to comply with the decree. Committal to civil jail in effect is a consequence for such failure and with regards to the aforementioned rights and freedoms, they are not absolute rights and fundamental freedoms, and therefore can be limited where necessary. In this event, the court is justified to deprive a debtor of these rights and freedoms if s/he fails to meet his/her obligations.
This was the reasoning of Ransley J. in “Omega Credit Limited V Mt. Kenya Roses Ltd. & 2 Others (Civil Case No. 700 of 1998 eKLR)”. Here, the respondent approached the court seeking a declaration that imprisonment of the defendant due to his failure to meet his contractual obligations contravened his right to liberty under Sections 72 of the repealed constitution, his right not to be held in servitude under Section 73, and his right not to be subjected to degrading or inhuman treatment under Section 74 of the old constitution.
The respondent also sought a declaration that when the plaintiff applied for an order that the decree be executed through the committal to civil jail of the defendant for inability to satisfy the same, it converted the application for execution to a criminal charge within the meaning of Section 77 of the old constitution and imported into the proceedings all the safeguards by that section to those likely to suffer loss of liberty at the conclusion of criminal or quasi-criminal proceedings, and that the deputy Registrar, in hearing the application for execution of the decree, contravened the defendant’s rights under Section 77(7) of the old constitution not to be compelled to give evidence at his trial, that his rights under 77 (2) (a) of the old constitution on the presumption of innocence were also contravened and that all the provisions of the Civil Procedure Act Chapter 21 Laws of Kenya and the Civil Procedure Rules made there under permitting committal to civil jail were unconstitutional, and therefore invalid and void.
The Court held that Section 72 1(b) and (c) of the old constitution provided for an exception to the fundamental principle that no person shall be subject to loss of his or her personal liberty in that committal to civil jail is for breach of a court order, which is sanctioned by the constitution, and that such execution cannot be considered to be either slavery, servitude or torture of inhuman treatment. Ransley, J. further stated that:
“I see nothing null and void or unconstitutional in relation to the provisions relating to imprisonment for breach of a court order in a civil matter or that the provision of the Civil Procedure Act offends in any way the provisions of the constitution in so far as the constitution allows as an exception to liberty, imprisonment for breach of a civil court order.”
Despite all the aforesaid, committing a decree holder to civil is not as friendly to the decree holder as it may appear to be. To begin with, it is the obligation of the decree holder to pay for the entire time the decree debtor stays in a civil jail; in the end, both the decree holder and the decree debtor suffer the consequences of civil jail in their own ways. The decree debtors’ rights and freedoms are limited whereas the decree holder suffers financially.
Things may get even worse for the decree holder where the decree debtor is still not motivated enough to pay the debt even after being committed to a civil jail, meaning the decree holder will be forced to stretch his financial muscle even more or let go of the debt.
Actually, the whole idea of a decree holder sponsoring the decree debtors’ stay in the civil jail defeats logic. Look at it this way: someone owes you money; you approach the court for and have that person committed to civil jail so as to motivate them to pay the debt, but it is again up to you to sponsor their stay in a civil jail. Does this not amount to punishing oneself?
Consider a scenario where one is committed to a civil jail for failing to pay money for child support because of reasons beyond their control, such as sudden job loss or bad health, or because they are irresponsible. This cannot be said to be just a punishment for that parent alone but also for the other parent, considering they will be forced to use the little available money to not only support the child but also to sponsor the other parent committed in a civil jail. Furthermore, how would committing a parent to a civil jail by the other parent impact on their future relationship? The child end up losing more as he/she is denied the pleasure of being raised by both parents plus, and subjects him/her to ridicule by his/her peers.
Moreover, committing a decree-debtor to a civil jail may not help him/her make good of the decree holders’ claim while he is incarcerated and without or with limited movement, which means s/he cannot undertake any activities to try and secure some funds or work to be channelled towards servicing the debt?
Although committing one to a civil jail can be seen as a tool used by decree holders to force the decree debtor or his/her family to make good the decree, it also strained the decree holder financially. It is with regard to the aforesaid that I propose that the laws providing for committal of a decree debtor who is unable to pay a debt or pay child support or failing to do as the court ordered to a civil jail be revised and ameliorated to include certain changes.
Change the law
First, a decree holder sponsoring the stay of a decree debtor in civil jail is to overstretch one financially for no reason. For God’s sake, s/he is the one owed! And where he sponsors the same, the decree debtor should reimburse the decree holder the money he spend in taking care of the decree debtor while in prison by adding all the expenses he incurs on the decree-debtors’ initial debt.
Alternatively, the decree debtor should pay for his stay in the civil jail himself, a proposal that many might feel is not logical considering the reason this person is being committed to civil jail is because he is unable to pay what he owes another. But one of the reasons for committing one to jail is to punish them, isn’t it? Let them be punished!
Another proposal is that the decree debtor should be kept busy in the civil jail with activities that can help in raising money to pay the debt or child support. Better still, keeping in mind all the shortcomings of committing someone to a civil jail, the decree holder should try to recover what he is owed through other ways of executing a decree such as attaching property of the decree debtor and selling it if necessary, a position that may prove difficult is situation where one has failed to pay child support as whatever they own is basically matrimonial property for married couples – unless they are not married.
This is the position in the United States, where there is no such thing as civil jail. There civil and tort cases are not punished by jail terms but by monetary fines and other sanctions against the defendant.