The criminalisation of petty offences, and why poverty is a crime


By NLM Writer

A few days before President Barrack Obama visited the country in 2015, security personnel and officers from the National Youth Service were poured on the streets of Nairobi with instructions to rid them of undesirables. Street families, hawkers, prostitutes, beggars, name them, ended up on the back seats of land cruisers and county inspectorate vans. For a small fee of anything between Sh3,000 and Sh7,000 the lucky ones would be released, but with a warning… “We catch you again and…” The not so lucky ones found themselves in crowded police cells somewhere in industrial area and elsewhere.

There, the choices were quite simple. For a small donation, one could benefit from the tranquillity of the less crowded cells – which they call “State House”. For a little less, a position in one of the “pipes” could be available, complete with a blanket. And for nothing at all, one had to contend with spending the night in the prison lavatories buzzing with flies and reeking of raw human waste.

For Sh250 he miraculously managed to save hidden away in a tiny pocket in his underwear, Kamau, a hawker, thought he had escaped the torment of the toilets when he offered to pay for spot in the pipes. He was in for a rude shock. The second best option was a row of close to 300 men squeezed together on their side in a narrow stretch that had been a water conduit. So squeezed were they that shifting position in the course of sleep could only happen periodically, in harmony and on the signal of the warden on duty. On every new arrival, the warden would shuffle across the pipe forcing his boot-enveloped foot between the sleepers. If the boot went through, it meant the availability of space in which another “customer” could fit.

“So why didn’t you complain to the magistrate as soon as you arrived in court?” I ask him.
“So that what?” he retorted, “A committee that will look into the matter has to be appointed. Usually the committee needs a couple of days to file a report. Where will I be sleeping in these two weeks? See, for even thinking about it, this is what I got” he lifts his shirt to reveal a series of scars across his waistline.

I am lost for words.

Events surrounding the Obama visit would pass for a one off except that they are not. They are daily occurrences that are taken up a notch when “important” visitors come calling. The massive clear out of Mombasa days preceding the 2007 IAAF World Cross Country Championships comes to mind.

In the city, it wouldn’t escape a curious eye the sudden episodes of hawkers scrambling to escape from city council askaris. Those caught part with anything between Sh50 and Sh1000 depending on the seriousness of their crimes. No receipts are issued. Otherwise, they have to contend with losing their wares to the greedy askaris who have no qualms destroying whatever remains. On Fridays, vendors must part with an extra sum of Sh300.

The night offers no remorse. A relatively incident-free night sees the average trader lose Sh1000 to the askaris – never mind that the Governor had, in his campaigns, pledged to make Nairobi a 24 hour economy in which hawkers would be classed small scale traders and allocated stalls. For most of the traders, this makes the total sum of their daily earnings and for others, the total worth of their wares. Many are those who are forced to go home empty-handed. Perhaps worse is the fact that payment is not a one off. Officers demand money separately, and each officer must be given what they ask for. Beyond confiscation of their wares, unless they offer a bribe, those who don’t pay risk imprisonment, even violence.

A veteran of these struggles like Kamau no longer risks prison because there, the bribe shoots up to something like Sh4000. And this isn’t even a guarantee that the confiscated goods will be returned.

“Play hardball and your wares could be burned altogether,” Kamau warns.

Sex workers and homosexuals do not fare any better. A not so classy episode in what turned out to be a gay club allowed this writer the unenviable opportunity to witness first-hand the atrocities they encounter. Afraid of staggering home in a drunken stupor, I had decided to “cool off” in one of the many nightspots that litter Tom Mboya Street.

Hardly had I settled down when a bearded gentleman made an obvious “invitation to treat”. Terribly homophobic, I hit the roof.

A scuffle ensued during which his aggressor drew a pistol and pointed it at me. Next thing I knew, we were handcuffed, at the back of one of those police land cruisers and on patrol. To Moi Avenue, University Way, Muindi Mbingu then Koinange, they only stopped momentarily to pick “clients” – pretty, scantily dressed madams, most of them seemingly in their early 20’s. Once inside, the girls would be forced to perform aggressive oral sex on the officers. And this would not stop until the officers were satisfied. Alternatively, they could pay cash bail of sh3,000. They would then be let go and a new set of girls would be picked.

A supposed homosexual himself and wary of the forceful anal examination he had severally heard awaited him at the station, my aggressor was forced to participate in these heinous acts and to their sardonic satisfaction! This routine persisted for about three hours they were on patrol.

A particular incident that really disturbed me, a middle aged “prostitute” deemed unworthy of their pleasure and who couldn’t raise the required fee was forcefully penetrated by a Pilsner bottle one of the officers had been drinking from before being released back to the streets without her handbag.

Worse is the regular killing of sex workers in Nakuru. Two years on and counting and with massive pressure from human rights groups, the police are yet to come up with any leads or arrest any suspects. That said, sex workers are now almost impossible to come by in the Nakuru CBD.

“We have no choice but to arm ourselves. With policemen posing as clients, town is no longer safe. It’s either the backstreets where you get virtually nothing or the high-end bars where we can’t compete. Those with loyal customers perhaps fare better because strategy has shifted to house visits,” Mueni a sex worker in Nakuru told us.

“We do not like doing this – at least I don’t. I am a single mother with dependants in the village. The salary I get from my day job at a massage parlour is not enough to survive let alone pay for my degree at the university. I have to offer “extras” for a fee and hit the streets during my off days.”

At Mama Ngina, the officers arrested a young couple that they accused of public indecency. Once inside they were ordered to “finish what they had begun on the streets!” Numb with shock, I paid for my release with my wallet whose contents I had, until then, clung onto in the name of responsible citizenship.

Not so long ago, a local TV station aired a disturbing documentary highlighting the sodomization and forceful circumcision of street boys. Girls would be picked, cleaned up and pimped out to sexual predators. In Nakuru, a young malnourished boy showed me scars that had been inflicted upon him by policemen who had found him sleeping on the streets. On his back were also belt streaks he told me were the legacy of a thorough beating suffered at the hand of his sleeping patron (the county government had provided a shelter where children below the age of 10 would receive two meals in a day and a place to sleep. The sleeping patron was the officer in charge). So severe are the beatings that many young children, including my acquaintance, opted for the insecurity and unpredictability of the streets.

Violence is particularly common with children due to their vulnerability and inability to pay bribes. Street children are perceived truant and therefore deserving of ill treatment. Many interpret their suffering as a deliberate choice, otherwise, “why wouldn’t they just go back home, go to school or like my acquaintance, just stay disciplined and take advantage of the opportunities offered by the children homes?” Street children are de facto thieves and drug users – a misguided percept the larger public continues to fan in the process giving credence to police brutality suffered by these poor souls.

Sellers of illicit brew and drug users are the other subjects of police – the former especially common in slums, western and central provinces while the latter are preyed upon for their dependence. In an interview with Caleb Angira, the Executive Director of Nairobi Outreach, a drug-dependence alleviation NGO based in Nairobi, points out that far from assisting, mainstream media has in fact been at the centre of fanning violence against drug users and drug addicts.

Reporters are often insincere when reporting on drug problems. They secretly film their interviewees, misreport and sensationalise otherwise novel programmes such as the distribution of free syringes and condoms among drug users and homosexual intended to curb the spread of HIV. This information is surrendered to the authorities that arrest and punish these people, removing them from an environment that would have helped them quit. Meanwhile, nothing is done about the big drug barons.


Experts explain such impunity by security organs in a number of ways. In their recent research on the Decriminalisation of Small Crimes, the International Commission of Jurists – Kenya Chapter points to glaring problems within the law as the principle causative and supporting agents. A lack of harmony between the Penal Code, county legislation, the 1994 Narcotic Drugs and Psychotropic Substances Control Act and the Constitution allows for discrimination, whilst also allowing interpretation that sees many wouldn’t have been crimes classed as such. Sections of the Penal Code that criminalise petty offences are offensive to the Constitution of Kenya, including Sections 175 (1), 182 and 193. Lawyer Suyianka Lempaa, however, lays blame squarely on the doorstep of the Judiciary.

According to him, the problem doesn’t arise, as the offending laws are void ab initio courtesy of Article 2 of the Constitution.

The shortcomings of our criminal justice system have also been explained as principle manifestations of the Marxist theory on government and delinquency. A human Rights and Criminology Expert, Lawyer Charles Khamala points out that our laws are designed by an elite who use punishment as a means of diverting attention from their own criminal behaviour and procuring the services of the lowly in society at almost no cost.

“Punishment and production is the base that sustains the superstructure – the elite government,” Dr Kamala explains.

And this is a difficult point to contest because measures of reform have so far barely considered the opinion of the poor and vulnerable. The government system also continues to be dominated by these elites.

But doesn’t the dire work and economic environment security personnel operate in also play a key role in determining police behaviour? The promulgation of the Constitution in 2010 ushered in a new period of inclusivity, justice, equity, equitability and non-discrimination. As Lempaa rightly points out, the Constitution anticipated instances where existing law would fall short in conformity and sought to denounce such laws in such instances. The law is therefore much better today, yet the problem persists. This may well mean that unless their working environment is improved and the incentives for bribes diminished, the poor and vulnerable will continue to suffer from the criminalisation of small crimes.



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