BEYOND WATCHING BRIEF AND COURT TESTIMONIES: A NEW DAWN FOR RESTORATIVE & REPARATIVE CRIMINAL JUSTICE IN KENYA
In Kenya, the role of the victims of crime in the criminal justice system has ordinarily been a peripheral one. More often than not, the victims in criminal cases in Kenya attended court sessions only when they were required to testify with most opting to stay away either out of fear/reverence of the court or fear of reprisals from accused persons. Where the victims were deceased, the families could only attend court and observe in silence. In similar vein, the role of a victim/complainant’s advocate was limited to ‘watching brief’ with a minimal role or influence over how the case is prosecuted or over whatever progression the matter would take.
Evidently, the criminal justice system has always been unemotive and blind to social realities as far as the victims of crimes are concerned. This status quo has led to a manifest situation of systemic injustice largely due to the fact that subpar collection of evidence prevented prosecutors from ventilating all the pertinent issues of the case. Accused persons were therefore set free on mere technicalities leaving the victims and their families to suffer the indignity of watching helplessly as a wrong-doer escaped justice.
Article 50 (9) of the Constitution mandates Parliament to enact laws that will guide the state in protecting victims, enforcing their rights and ensuring their welfare before during and after the trial of the accused person. The first step towards this worthy cause was taken when the President signed into law the Victim Protection Act, 2014 (“the Act”). The Act seeks to protect all victims of any offence under Kenyan law and provide various remedies to the victims; a novel concept to the criminal justice system in Kenya. Ordinarily, the only solace that the victims of crime received was the knowledge that the perpetrators of crimes against them would receive a harsh sentence if convicted. This Act provides for various means of assisting the victims cope with the situation such as restorative justice, restitution, rehabilitation, psychological treatment, protection from victimisation, e.t.c.
Who is a Victim of a Crime?
The Victim Protection Act takes cognisance of the fact that the victims of crime are as varied as the nature of the crimes themselves. Section 2 (1) of the Act defines a victim as any natural person who suffers injury, loss or damage as a consequence of an offence. This definition is quite wide and covers the complainant, his immediate and extended family (to some extent) and members of the wider community. This wide definition is by design as the victims of an offence are usually more than just the complainant. Family members can be considered victims where the sole breadwinner is slain for instance. Members of the general public can be victims where they suffer psychological trauma due to witnessing violent crimes. The possibilities are quite endless, thus a wide definition of “victim” is quite apt.
The Act also sets out a special category of victims known as ‘vulnerable’ victims. These are people who due to their age, gender, disability or other special characteristic require special treatment and support. Such victims could be small children, mentally disturbed persons, victims of rape, amongst others.
In addition to the wide definition of a victim, the Act also has a wide application in that it applies to crimes committed both within and beyond the Kenyan borders. This is an especially useful provision when dealing with serious human rights violations such as slavery, forced prostitution and human trafficking crimes which can be committed across several jurisdictions.
What Protection is afforded to the Victim under the Act?
The protections afforded to victims under the Act are in addition to those provided under the Witness Protection Act 2006 and the Counter-Trafficking in Persons Act, 2010. The various judicial, administrative and security organs in Kenya have now been mandated to ensure that:
- The thoughts and feelings of victims are heard before any decision affecting them is made.
- Victims are not discriminated against based on race, colour, gender, age, language, creed, religion, nationality, political or other opinion, cultural belief or practices, property, birth or family status, ethnic or social origin, disability or any other ground.
- The victim’s dignity is preserved at all times and at whatever stage of the judicial process.
- The victim is addressed in manner appropriate to their age, intellectual development and that they are allowed to speak in a language of their own choice.
- The victim’s cultural values and beliefs are respected and upheld.
- The judicial process does not result in discrimination or a re-victimisation of the victim.
Victims are afforded legal and/or social services of their choice and where the victim is a vulnerable victim such services shall be paid for by the State.
- Vulnerable victims are allowed to contact their families or primary caregivers.
It is important to note the wide description of a victim under the Victim Protection Act allows authorities to take steps to ensure that a victim, his family members or any other persons are granted protection under the witness protection programs offered by the Witness and Victim Protection Agency established under the Witness Protection Act, 2006.
Rights of a Victim at the Trial of the Accused Person
The Act provides for the following rights to be granted to victims during the trial process:
- Right to attend the trial of the accused in person or through a representative.
- Right to have the trial begin and conclude without undue delay.
- Right to have his/her/their views considered in case of any plea bargaining between the State and the accused.
- Right to have any dispute with the accused referred to a competent authority for fair and just determination of the same.
- Right to be informed in advance of all the evidence to be adduced at trial. This includes both the prosecutor’s and the defence’s evidence.
- Right to have a State appointed interpreter where the victim cannot understand the language used at the trial.
- Right to be informed of the charge which the accused is facing.
The court may also allow the victim’s views and concerns to be presented and considered at various stages of the proceedings. A victim who is the complainant in a criminal matter is granted the right to present and adduce any additional evidence that they feel has been left out by the prosecutor. This may be done either in person or through an advocate. Furthermore for the first time in the history of Kenya’s criminal justice system, a complainant can adduce written submissions as part of their evidence. Such submissions must be considered by the court before it makes any ruling. These views must not however, prejudice the rights of the accused person or be inconsistent with the principles of a fair and impartial trial.
General Rights granted by the Act
State organs and their representatives now have an obligation to ensure that the victims of crime are afforded protection and security. The Act requires that a person who is dealing with victims must first takes steps to ensure that the said victim does not suffer further harm before anything else. This requirement extends to the family members of victims. Thus in situations of intimidation of the family members of witnesses, the authorities are now empowered and indeed mandated to take actions to protect such people. A victim has a right to the above protection by dint of Section 10 (1) of the Act.
The victims of a crime have the right to receive support and welfare services provided by the Victim Protection Board. These services include:
1. Provision of healthcare services and professionals to deal with physical and emotional trauma suffered by the victim.
2. Providing access and participation in the criminal justice process.
3. Enabling reparations and restorative justice for the victims.
4. Assisting victims cope with potential victimisation and the issues arising thereafter.
The restorative justice envisioned under the Act is meant to be a process by which the accused and the complainant can reconcile. It involves great consideration of the views and feelings of the victims, the accused and the wider community; the primary aim being that people can live in peace and harmony within the society despite the criminal justice process taking its course. As such, though a victim has a right to participate in the restorative process, they cannot be obligated to participate. The accused can also choose whether to participate in such a process or opt out of participating at any time. The restorative justice process must be in line with Article 159 (3) of the Constitution of Kenya which provides that dispute resolution mechanisms must not be used in a manner that contravenes the Bill of Rights, is repugnant to justice & morality and is inconsistent with the Constitution or any other written law. It therefore requires that local community mediation efforts common in rural Kenya be just and fair to both the accused and the victim(s) of the crime.
Other Rights Prior, During & Post Trial
A victim who has released his or her property to a law enforcement agency as evidence has the right to the prompt release of such property once the investigation and prosecution of the criminal matter is concluded. The Witness Protection Agency is mandated to procure the prompt release of such property.
A victim is also guaranteed the right to submit any true information that they consider is important. This information must be considered by the various authorities at different stages of the criminal justice process such as at trial, appeals, plea bargains, bail hearings, sentencing and at hearings before the Advisory Committee on the Power of Mercy.
A victim can also request the Cabinet Secretary to grant access to certain information about the offender such as:
(i) The name and address of the correctional institution in which the offender is jailed.
(ii) The date on which the offender is to be released.
(iii) Conditions attached to the offenders release e.g. not to associate with known criminals.
(iv) Whether the accused is to be released under parole terms. If these terms are to change the victim must be given notice of the same.
NB: The victim’s access to information about the offender can be denied where the Cabinet Secretary determines that giving such information adversely affects the offender’s right to privacy or it would not be in the best interests to release such information to the victim.
Rights of a Vulnerable Victim
A vulnerable victim is a person who in the opinion of the court or competent authority the victim is vulnerable on account of age, gender, race, dependency on the accused, trauma, disability, physical/intellectual/psychological impairment amongst other considerations. The court or competent authority is required to appoint a representative of the vulnerable victim. Whereas the role of such a representative has not been clearly defined in the Act, they are generally required to act in the best interests of the vulnerable victim.
Once a victim is categorised as a vulnerable victim, they are to receive special consideration from the authorities. This is over and above their constitutional rights and freedoms conferred to them in the Constitution. Vulnerable victims are entitled to receive protection and welfare services, programs designed to cater for their entertainment/enjoyment under the Act and where they are children, all the rights accorded to them under the Children’s Act (No 8 of 2001).
Rights of a Child Victim
The Act specifically provides for vulnerable child victims by enabling any police officer or any public officer presiding in the case or the Director of Public Prosecutions to remove such children from their parents, guardians or caregivers in circumstances where leaving such children in the care of these people would not be prudent. A prime example would be in cases of incest. In such circumstances, the vulnerable child victim will be taken to a place of safety until the court makes a decision on the matter. This is an equitable solution that enables previously powerless officials to safeguard the best interests and personal safety of the children.
Reparation & Victims’ Right to Compensation
The most significant change under the Act is the introduction of the concept of compensation and restitution to the Kenyan criminal justice system. This is in line with the move towards reparative justice as opposed to merely punishing and reforming the offender. Under Section 23 of the Act, the victim of a crime has the right to be compensated by the offender for:
(i) Economic loss occasioned by the offence.
(ii) Loss or damage to property.
(iii) Loss of use of the property. (e.g. in cases of arson)
(iv) Personal injury suffered by the victim.
(v) Costs of medical or psychological treatment.
(vi) Costs of necessary transportation and accommodation suffered or incurred as a result of an offence.
(vii) Any other relief that the court may consider.
A victim may now be granted an award of compensation in a criminal case which can be enforced in a similar manner as a judgment in civil proceedings. Previously, a victim of crime had to institute separate and parallel civil suit against the accused person in order to receive any compensation. The logic for such a provision is that it is manifestly unfair to require a victim to undergo the unnecessary added expense and anguish of suing the accused for compensation or restitution yet he/she has already been deprived of his/her own property.
Where a criminal fine as well as an order of compensation is handed down by the court, the order of compensation takes precedence and shall be governed by the Civil Procedure Rules.
NB: A compensation or restitution order does not act as a replacement for the sentence for the crime (whether a jail term or a fine). It also does not prevent the victim from suing the offender for additional compensation should they choose to do so.
The Act provides for the establishment of victim services in all the 47 counties in Kenya. Their responsibilities include amongst other things:
(i) Ensuring the prompt investigation and prosecution of all criminal cases in the county.
(ii) Ensuring access to courtrooms, prosecutor’s and any other office necessary for the victim.
(iii) Ensuring availability of culturally sensitive services to members of ethno-cultural and religious minorities.
(iv) Ensuring that all courts are fitted with special waiting rooms for victims awaiting court appearance which must be separate from where offenders are held.
(v) Ensuring the provision of adequate and effective medical services to victims.
The role of victim services also includes referring the victims to witness protection programs where it is apparent that the offender or his agents/associates intend to intimidate the victim or retaliate against the victim for testifying.
Non-Discrimination by Employer
The Act makes it an offence for an employer to discharge, suspend, intimidate, coerce, penalise or discriminate against an employee because they are absent from work to give testimony in a criminal case or they assisting with the investigation of an offence. An employer who takes any of the aforementioned action is liable upon conviction to a fine of K.Shs. 200,000/= or imprisonment for a term not more than 6 months or both. The rationale for this provision is to encourage witnesses to provide their testimony to the courts without fear of adverse actions by their employers especially in cases of whistle blowing.
Critique of the Victim Protection Act
Some provisions of the Act go against the basic principles that guide our justice system. One such provision is to be found in Section 9 (1) (e) which states that
9. (1) A victim has a right to –
e) be informed in advance of the evidence the prosecution and defence intends to rely on, and to have reasonable access to that evidence;
In criminal matters, the defence is ordinarily not required to divulge their defence and evidence unless and until the prosecution satisfies the court that the accused has a case to answer. Therefore a law that makes it necessary for the accused’s defence to release their evidence to the complainant in advance of trial jeopardizes the defence’s ability to defend the case and their right to due process and a fair trial.
The Victim Protection Act is a mixed bag of goodies that if implemented correctly will set forth a new dawn in the Kenyan criminal justice system. It will result in a more approachable and responsive justice system by looking beyond punishing and reforming the wrong doer, but rather to novel concepts such as restorative justice, restitution and compensation as a means of providing the Kenyan society with true justice.
NB: The contents of this e-newsletter are for general information purposes only and do not constitute legal advice/legal opinion nor are they intended to create any client-lawyer relationship between the sender and the recipient. As legal advice must be tailored to the specific circumstances of each case, nothing provided herein should be used as a substitute for advice of a competent advocate. No reliance should therefore be placed on any information contained herein without first seeking the advice of an advocate.
Mwale & Company Advocates