This report from the Daily Maverick, published on 15 August 2024.

Kenya’s justice system is clogged with past, pending and new drug trafficking court cases – effectively keeping offenders on the streets and citizens unsafe.

Drug traffickers use loopholes in the criminal justice system to evade prosecution and sentencing, while the proceeds of crime are used to bribe corrupt officials or fund lengthy court battles.

The case of Yusuf Ahmed Swaleh, aka Kandereni or Candy Rain, provides a good example. Heir to the vast Akasha drug empire, he was often released from custody after being found not guilty on drug-related charges. On 17 March 2024, he was kidnapped and killed by unknown assailants – while still embroiled in several drug trafficking and money laundering cases.

The repeated arrest, failure to prosecute and release of well-known suspects undermines trust in the justice system and costs the state time and resources. Nancy Indoveria Kigunzu, a renowned drug lord popularly known as Mathe wa Ngara (“mother of Ngara”), was arrested in August 2023 on charges of trafficking cannabis worth $140,692. Since being released on bail in December, her case has still not been heard – although some of her assets were forfeited to the state as proceeds of crime.

Long court delays undermine the significance of convictions and stiff sentences in drug-related cases. On 10 March, life sentences were handed down to seven foreigners nearly a decade after their arrest for trafficking heroin worth $10-million via the Indian Ocean route to Kenya’s coastal city of Mombasa.

Unless such cases are prioritised and measures are taken to address corruption and bottlenecks, the public will remain sceptical of the government’s commitment to curbing the growing drug market.

According to Rahma Ramadhan, a legal practitioner and senior researcher at the Centre for Human Rights and Policy Studies, Kenya’s judicial process is slow due to a combination of challenges and structural deficiencies. These include lengthy trial procedures because of the rising numbers of civil and criminal cases, and insufficient judicial personnel to deal with these cases. In major drug trafficking matters, shoddy evidence gathering and poor presentation before the court are also factors.

A media report quotes Chief Justice Martha Koome as saying that in the 2021/22 financial year, 521,823 cases were before the magistrates’ courts – 233,177 of which had been in the system for more than a year. About one-third of this backlog had been in the court system for more than three years.

While out on bail, drug trafficking suspects often interfere with evidence and bribe the prosecution team or judge in order to evade justice. A 2019 Directorate of Criminal Investigations report seen by The Star in Kenya reveals that a “dozen court officials are currently under close scrutiny of investigative agencies over close links to known narcotics traffickers”.

Once their case is dismissed or they are acquitted, most drug traffickers simply continue with business as usual. Many are subsequently rearrested and prosecuted. A typical example is Scola Namunyu Imbiti, who was arrested at an airport in January 2010 with 21kg of heroin. In 2011, she and two foreigners were accused of credit card fraud. Both cases were dismissed due to lack of evidence. In January 2024 she was finally jailed for 15 years for drug trafficking.

Urgent and consistent action is needed to reduce the backlog and deliver justice more swiftly. There are, however, other options that could be considered as a complement to court-based processes.

Using alternative dispute resolution mechanisms for less-serious and nonviolent cases would help decongest the courts, as would autonomous Alternative Justice System Centres. These use customary and traditional dispute resolution mechanisms. They are far more accessible and affordable than the formal court system, and Kenya’s judiciary is currently promoting these measures to reduce backlogs.

The judiciary should also redouble its efforts to use technology and bridge the divide between urban and rural access through its virtual and mobile courts launched during Covid-19. Establishing dedicated courts with specialist prosecutors could also speed up case processing through the criminal justice system and increase prosecutorial success rates for drug trafficking cases.

Technology can also enhance case management. An electronic case management system was introduced in Kenya’s courts in 2020, but the slow pace of implementation means the impact of the system is yet to be felt.

To speed up the processing of drug-related cases, police and prosecutors must be more proactive. Several cases have been dismissed due to insufficient evidence gathered by the police, poor case preparation and weak presentation in court by prosecutors. Continuous skills development is needed to address gaps among detectives, court officials and prosecutors.

Allegations of corruption in drug-trafficking cases persist. To shift citizens’ mistrust in the criminal justice system, swift action must be taken against those accepting bribes, unnecessarily wasting time and conducting poor investigations and case management.

Halkano Wario, Regional Organised Crime Observatory, ENACT, Institute for Security Studies (ISS) Nairobi.

ENACT is funded by the European Union and implemented by the Institute for Security Studies in partnership with Interpol and the Global Initiative against Transnational Organized Crime.

First published by ISS Today.