Ken Opala
5 October 2008
Nairobi — Pleading guilty in the Kenyan court could save you decades in jail.
Hundreds -- even thousands -- of victims of trafficking and the cartels may be going scot-free for uttering one statement: That is true, Your Majesty, I am guilty as charged.
Ideally, pleading guilty is an admission of wrongdoing. But criminals in Kenya have realised that it could be a lifeline, and they are handily using it to evade jail, investigations show.
"We tell them to plead guilty on first mention, so as to avoid full hearing in court," says Moha, a trafficker in Busia Town.
"A full hearing could bring out everything about the business. So, to avoid everything coming out in court, we tell them to say "it is true" to the magistrate or judge." Those being moved are told to feign ignorance.
Grave crimes
Once they plead guilty, judges and magistrates hurriedly fine them.
Yet the arresting police, prosecutors and the Judiciary don't know -- or overlook and/or are constrained by the law -- is that the people who are so fast in pleading guilty are victims of an elaborate international ring that trades in smuggling and trafficking of humans and human organs; grave crimes that attract decades in jail elsewhere.
Indeed, before embarking on their torturous journeys between Kenya and South Africa, Rwanda, Burundi, Middle East, and Europe, the victims are told that if arrested, they should plead guilty, to save them longer stay in jails and avoid exposing the "business", says a Mombasa-based trafficker who claims to have moved 200 Ethiopians to South Africa since January.
Hence the cartels and associates in crime are let off the hook. Only a full hearing in court would have exposed them. Thus, the legislation, Chapter 72 of the Laws of Kenya, seems to convict the victim rather than the offender.
"It is very difficult to prove a smuggler," says Cyrus Omooria, the Immigration officer in charge of investigations and prosecution at the Coast.
"Unlike their victims, the smuggler or trafficker always has proper documents."
The courts are constrained by a legislation that is silent on human trafficking and smuggling. The Immigration laws have not been reviewed since 1967.
"There is nothing to charge traffickers with," Fida legal counsel Ann Ireri says. "They plead guilty to get a quick bond or fine. You hardly find them sentenced."
The law as it is doesn't define trafficking in line with the UN protocol.
Consequently, foreigners who lack immigration papers are considered criminals and repatriated even if they may have been trafficked to Kenya. Yet those with papers may not be considered victims.
Because of the constraint of the law to have suspects presented to court within 24 hours, police and judicial officials, and Immigration personnel do not have enough time to establish whether or not they are trafficked or traffickers.
As an easy way out, they target people without travel papers who they rush to court and charge with being in Kenya illegally.
That charge, being in Kenya illegally, doesn't necessarily draw a jail term. What judicial officers do is jail them for two months, in lieu of a Sh1,000 fine and subsequently repatriate them.
Investigations by this writer reveal that at least 26 foreigners without immigration papers (passports, entry permits, visas) were lightly punished in Busia (July and August) and 40 in Mombasa (between May and July).
Another 30 were in Kwale (May-July) and 34 in Bungoma since January, for pleading guilty, on first mention, to a charge of either "being in Kenya illegally" or "unlawfully entering Kenya in contravention of Immigration Act Cap 172 contrary to Section 13 (2) (c)" and "unlawful presence".
For traffickers and their victims, the court penalty is hardly deterrent enough. The three-month jail term is in lieu of court fines that range generally between Sh1,000 and Sh2,000.
Yet those convicted are people who pay as much as Sh700,000 to the cartels for passage abroad. (In the US, a Cameroonian woman was jailed for 60 years for trafficking a house-help.)
In Kwale, 20 men and women discovered in a thicket on an abandoned island next to Funzi Island, near Shimoni on May 8, 2008, were hurriedly spirited to a Kwale court and were to be deported. All they did was to plead guilty.
Even those who falsify documents (a major crime in the country) are easily let off the hook.
Indeed, in one case, a group of seven Ethiopians arrested in Busia trying to pass through Kenya to Burundi on June 8, had used fake Immigration papers.
The entry was "purported issued in Moyale", a frontier town on Kenya-Ethiopia border. They all pleaded guilty and were acquitted pending repatriation.
Again, the "guilty" plea unhooked their associates in the crime. Those who forged travel documents and arranged for their acquisition -- the network -- were left off the hook to continue with their business.
In Malaba, Teso District, Mohamed Ali alias Etyang was fined Sh10,000 or four months in jail pending repatriation to Uganda, for being in Kenya illegally.
He had been arrested on April 28. Four months later, on August 5, a Mr John Etyang was arrested in Malaba for being in Kenya illegally. In the second case, he was fined Sh1,000 or 30 days jail pending repatriation.
"It could be the same person we are talking about. I think it is the same person," a court orderly told this writer.
The police never attempted to draw parallels here.
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