Transformative & Restorative Justice: Towards A Feminist Abolitionist Praxis in Kenya

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In 2008, Marley, now a community organizer and advocate for transformative and restorative justice, was sentenced to life imprisonment at Kamiti Maximum Prison for armed robbery.

He reflects on his upbringing in Kawangware, where poverty and drug dependence forced him into a life of theft. “I was part of a gang that engaged in various criminal activities, targeting affluent neighborhoods such as Lavington, Karen, and Langata”.

Marley goes into great detail about his “kabaridi” (pickpocketing) stunts to feed a drug habit and his eventual arrest and sentencing.

His time at Kamiti Maximum prison was characterized by stress, deteriorating health, and the harsh realization that he had been reduced to dehumanized state property.

Marley describes the prison as an environment where survival depends on engaging in prison industries such as carpentry, mechanics, and masonry, and where a thriving black market exists. “The tuma kwa hii namba scam texts have their origins in Kamiti and I sent out quite a number of them,” Marley recalls with a chuckle.

After three years, he appealed his case due to inconsistencies in his file, resulting in the dismissal of his sentence. However, instead of finding freedom, he was charged with handling stolen goods and transferred to medium sentence prison.

Upon his release in 2012, Marley faced numerous challenges as he struggled to adapt to a post-incarceration life and a world that had changed so much. Many of his friends were either dead or in jail. His family shunned him and he faced stigmatization from the community.

“Prisons do little to transform and rehabilitate anyone, they only punish and destroy” Marley tells me.

He eventually found community in a support group he co-founded called Mneti Huru, which means free prisoner in slang. Mneti Huru focuses on prison visitations, mentorship programs, reintegration, rehabilitation, economic empowerment, and advocacy for alternative dispute resolution.

In the midst of the COVID-19 pandemic’s peak in 2020, I had the opportunity to have a virtual meeting with Marley. Our conversation took place against the backdrop of increasing calls for prison and police abolition in Kenya, fueled by the awareness of pervasive police brutality. Now, in 2023, we find ourselves engaged in discussions about viable alternatives to the harsh carceral system.

“Your environment really shapes who you are. If I didn’t have to struggle with poverty as a young man, I wouldn’t have ended up committing crimes to survive”. Marley reflects.

His narrative mirrors that of countless others who end up in the carceral system. If they had access to better living conditions and stronger community backing, they could have been spared from resorting to hazardous actions and experiencing incarceration.

“The system still punishes you even after release. You need a certificate of good conduct for employment and this is unattainable for former convicts. Without the certificate, you are unemployable in most places. That’s why many of my friends ended up going back to prison after they were released because they had to steal to survive” Marley says.

The current neoliberal state we live in and the increasingly challenging economic conditions will eventually push many vulnerable young people into situations that will lead them into engaging in criminal activities for their survival.

With the passing of the controversial finance bill that is set to exponentially raise the price of basic goods, We are to expect the impending impact of economic precarity and the specter  of Structural Adjustment Programs (SAPs). We are likely to witness a surge in crime and horizontal violence based on the overwhelming stressors of our environment.

The establishment of the Kenya Prisons Enterprise Corporation in 2018 poses a further threat to the freedom of those living in vulnerable economic conditions. The commodification of prisoners’ labor for profit creates incentives for the state to maintain the prison system and perpetuate violence, disproportionately affecting marginalized groups.

It is imperative to acknowledge that the introduction of prisons and police during the colonial era aimed to safeguard the interests of settlers, often at the detriment of Africans. They faced the loss of their land, endured surveillance, control, and imprisonment. In contemporary times, this system continues to serve a comparable function by primarily punishing the poor. As material conditions deteriorate, it becomes critical to recognize that children, women, and gender diverse individuals are increasingly susceptible to violence.

This situation demands immediate intervention. However, the initial response often defaults to relying on carceral solutions involving the state and police when dealing with harm within our communities.

Despite their well-meaning intentions, these responses unintentionally perpetuate the deficiencies of the current legal system in effectively addressing the deep-rooted causes of harm. Carceral practices isolate survivors, individualize incidents of harm by treating perpetrators as disposable, and prevent communities from examining their own complicity in enabling harm. Decades of research consistently demonstrate that prisons are the least effective means of rehabilitating offenders. Studies indicate that incarceration actually increases the likelihood of recidivism .

There are numerous reasons for this ineffectiveness. Imprisonment often renders individuals incapable of functioning in the outside world due to the trauma of incarceration, or they may adopt harmful behaviors from being housed with hardened criminals. Ultimately, prisons institutionalize inmates into a highly regulated way of life that is disconnected from the realities of the outside world.

To overcome these challenges, we must embrace the principles of transformative and restorative justice. Prison and police abolition, a vision aimed at reducing and ultimately eliminating imprisonment, policing, and surveillance, offers a distinct perspective on justice and punishment. Abolitionists urge us to look beyond prisons and policing as the solution and instead adopt a feminist and socialist analysis to understand the profound issues associated with carcerality.

Prison is rarely a deterrent for most forms of offending. Crime is predominantly driven by impulsive decisions or complex external factors, and the notion that offenders are “rational agents” weighing the costs and benefits of their actions has been largely debunked.

So, if prisons prove ineffective, what alternatives should we consider?

First and foremost, if individuals pose a huge risk to the community, they can be closely monitored and controlled without being confined within traditional prison environments.

There are Community corrections, which already exist within Australia’s criminal justice system that can serve as a blueprint. They have been found to effectively manage and treat offending behavior. Under community corrections, offenders can regularly report to a case manager responsible for guiding them through educational programs, community work, and treatment initiatives designed to address anti-social thinking and behavior. Community corrections is by no means a lenient approach, as the threat of state intervention looms large should an offender continue to perpetuate harm to the community and is resistant to an accountability and transformative process.

Likewise, we could establish specialized jurisdictions for offenders with mental health issues to look into accused individuals with mental illness or cognitive impairments, connecting them with treatment agencies to address the underlying causes of their offenses—the stress of living under capitalism could be a key contributor.

Of course, not all forms of offending can be attributed to underlying mental health issues, but for those who require treatment, it is the most effective means of reducing reoffending. Restorative justice allows victims to confront their attackers with the support and protection of their communities, seek financial or other forms of restitution, and have a say in the accountability process offenders must undertake.

In seeking alternatives to needless incarceration and the negative state engagement associated with it, we can incorporate gendered and feminist lenses. Abolitionist feminism challenges us to imagine a world beyond the brutal carceral system, even as the oppressive nature of living within a capitalist framework makes this seem near impossible.

It also calls upon us to explore traditional African dispute resolution methods, such as mediation, adjudication, reconciliation, arbitration, and negotiation. To address sexual and gender-based violence without relying on state violence, we can turn to transformative justice and community-based responses.

These approaches must acknowledge the impact of colonialism, capitalism, poverty, and exploitation while focusing on healing, repair, restoration and accountability. Resources should be invested in assisting survivors in leaving abusive environments, providing mental health and trauma counseling, and establishing inclusive help centers accessible to all survivors.

Repair and accountability entail counseling for those who have caused harm, as well as employing restorative justice practices like victim-offender mediation, community justice conferencing, workshops, training, removal from leadership positions, admission of guilt, public or private apologies, and specific behavioral changes.

Prevention of sexual and gender-based violence requires redirecting resources toward education, health, social housing, and creating unarmed service teams outside the police force to address mental health crises, drug-related issues, and gender-based violence. Additionally, prevention necessitates challenging policies and attitudes that dismiss sexual violence against women and dismantle the structures that protect perpetrators.

While exploring an abolitionist praxis, we must always remember that the responsibility for transformation should never be borne by those who have been harmed. When individuals who have caused harm do not give their consent to engage in transformative justice processes, it is important that we acknowledge and accept the  inherent challenges they face and the potential for additional harm that may occur in a transformative and restorative justice process.

Implementing a transformative and restorative justice system must begin within our homes and organizations. As feminist organizers, we must be mindful of the harm we may inadvertently perpetuate to each other, our families and the wider community.  We need accountability and dispute resolution methods rooted in love and care rather than polemics and Twitter “call-outs and cancellations” we often participate in that replicate the state’s carceral system. Instead, let us “call each other in,” as Angela Davis suggests, viewing freedom as a collective project and an opportunity to build unity for emancipation.

Recognizing the limitations of the legal system, we must prioritize alternatives that emphasize healing, accountability, and social transformation. By centering the voices and experiences of those most affected by carcerality, we can collaboratively work toward dismantling oppressive systems and creating a society that embraces justice and liberation.

It is important however, to acknowledge that certain traumas, conflicts, and instances of harm may not align with the processes of transformative and restorative justice. Abolition praxis is still a very new concept to many of us. In such cases, we must be prepared to accept that we do not possess all the answers, especially when individuals refuse to consent and commit to transforming their harmful actions.

When situations arise where all non- violent carceral options have been explored and  transformative and restorative justice is completely unattainable or not consented to by the person responsible for the harm, we must expect complex and sometimes even drastic responses to address and rectify the harm inflicted. Still, we will continue to do this till we’re free!

*Maureen Kasuku is a socialist feminist based in Nairobi.

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