It is in our interests to uphold the idea of civil jail

By Newton Arori

Imprisonment for failure to pay a debt, otherwise known as civil jail, is not exactly popular. To many, the terms of civil jail are unfair, illogical, and even illegal. In 2010, Lady Justice Martha Koome famously declared civil jail unconstitutional, saying it goes against the International Covenant on Civil and Political Rights (ICCPR), which guarantees basic freedoms of movement and of pursuing economic social and cultural development.

Lady Justice Koome is hardly alone in her distaste of civil jail.  The Southern Centre for Human Rights, an American human rights association, describes civil jail as “criminalisation of poverty”. The argument goes that jailing someone simply because they cannot pay a debt portrays a justice system designed to jail the poor for their poverty; these are sentiments that are echoed by the American Civil Liberties Union.

Justus Jeffrey Olaka writing in the August 2016 edition of the Nairobi Law Monthly says civil jail is illogical and out-dated. He poses, “…Someone owes you money, you approach the court and have the 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 (sic). Does this not amount to punishing oneself?” Since its inception, the practice of civil jail has been accused of a litany of evils that are limited only by the creativity of the critics.

This piece argues in favour of the practice of civil jail. It will seek to show that the critics’ views are founded on a simplistic view of the practice, and failure to appreciate the true intention of the concept of civil jail.

The critics are rightfully puzzled as to why a person unable to pay a debt or fulfil a contractual obligation should be confined to prison. Shouldn’t he be allowed to work, so that maybe s/he can repay his debt, even if only in part? This is a misunderstanding of a problem that is much more complex.

Why civil jail?

Civil jail evolved as a means of taming unscrupulous borrowers who had devised means to avoid the payment of debts owed. In Kenya, for example, there have been numerous cases of parents who resign from their jobs after their salary is attached in the enforcement of a child support order. How should the law deal with such? David Bar-Rav-Hai (1960) noted, “Isn’t it simpler to say to a debtor who refuses to pay, instead of sending policemen and detectives to search for where you have hidden your property… we’ll put you in jail and then maybe you will tell us, of your own free will, where it is?…”

Hai further notes, “the time has not yet come for the annulment of imprisonment for debt, and I would like to explain what lies behind the words ‘the time has not yet come’. The time has not yet come means that a strong, solid ethic has yet to be established among the borrowing public …”

It is well known that Kenya is among the most corrupt countries in the world and therefore annulling civil jail may do more harm than good by opening a safe haven for defaulters. Such a move would harm the creditors and, eventually, debtors would not be able to get loans, thus curtailing economic development.

In addition, Deborah Bernstein (1993) has observed:
“It is well known in the history of law that whenever the abolition of a cruel means was suggested, whether for punishment, investigation or some other purpose, the argument was raised, principally by judges and lawyers, that without cruel but proven and tested means, anarchy would prevail, and therefore that the abolition of the cruel means is a decree that most of the public could not live with”

Granted, there could be genuine debtors who cannot pay due to economic misfortune and should not be treated in the same manner as fraudsters. The problem is that the distinction between the two kinds of debtors is hard to draw.

Another compelling reason for upholding the practice of civil jail is to preserve the dignity of the justice system. There is need to have a justice system that executes contracts, enforces judgements and protects the dignity of the court system against mockery. In this light then, debtors who cannot meet their obligations must be seen as quasi-criminals offending the dignity of the court [Elon Menachem (1999)].

Section 38 of the Civil Procedure Act of Kenya provides that on application of the decree holder, the court may order the arrest and detention in prison of the judgement debtor. This section of the law is seen as being unconstitutional as it appears to contradict Article 11 of the ICCPR, which states, “No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation”. The conclusion of unconstitutionality derives from a reading of Article 2(6) of the Constitution, which provides, “Any treaty or convention ratified by Kenya shall form part of the law of Kenya under the constitution.”

Faulty reasoning

With respect, that line of reasoning is faulty on at least two grounds. First, it is noteworthy that Article 25 of the Constitution lists the rights and fundamental freedoms that cannot be limited. These are freedom from torture, cruel, inhumane and degrading treatment; freedom from slavery or servitude; the right to a fair trial, and the right to an order of habeas corpus. Therefore all other rights, including the right not to be imprisoned for inability to fulfil a contractual obligation, may be limited under certain circumstances.

Second, international law is in no way superior to our local legislation. In the case of Beatrice Wanjiku and Another v Attorney General and Another (2012) eKLR, Justice David Majanja took this position. The petitioners in the case had argued that the wording of article 2(6) of the Constitution that “a treaty ratified by Kenya forms part of the law under the constitution” translates to “a treaty ratified by Kenya forms part of the law immediately below the Constitution” in terms of hierarchy, therefore implying that international law supersedes local legislation. Justice Majanja dismissed the argument, holding thus:

“I do not think the framers of the Constitution would have intended that international conventions and treaties should be superior to local legislation and take precedence over laws enacted by their chosen representatives… Article 1 (of the Constitution) places a premium on the sovereignty of the people to be exercised through democratically elected representatives and a contrary interpretation would put the Executive in a position where it directly usurps legislative authority through treaties, thereby undermining the doctrine of separation of powers which is part of our constitutional set up…”

In sum, the provisions of the ICCPR, an international convention, cannot be taken to supersede those of the Civil Procedure Act, a law enacted by the chosen representatives of the people of the Republic of Kenya.

From the foregoing, we can safely conclude that the terms of civil jail are not unfair; neither are they unconstitutional or illegal. We must retain the practice until such time when it will be justifiable to abolish it, considering all relevant factors.

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