Kenya scarred by miscarriage of justice

By PRAVIN BOWRY

In over 110 years of Kenya’s history based on common law — through the colonial period to the post-Independence era — there is no record of even a single instance where miscarriage of justice has been acknowledged by the legal system.

Miscarriage of justice is generally referred to in criminal law when conviction is entered by a court and punishment is given to a person for a crime the accused did not commit. The term is also applicable to civil cases where errors of impunity occur.

Instances of miscarriage prevail where false testimony is given and even when the prosecution withhold, destroy or fabricate evidence.

Other instances are cases of misidentification, faulty forensic testing, political pressure or influence on the prosecutors, magistrates and judges. Corruption and lack of work ethics in the judiciary are famously and rightly attributed to instances of perverted justice.

The weakness of miscarriages in the legal system often comes to the fore when discussing the death penalty. In the Western world hundreds of cases exist when after execution of a prisoner, facts emerge in the public domain to show innocence of the wrongly accused.

In Canada, for instance, a wrongful conviction stood for 48 years before finally being overturned in 2007. In England the West Midlands Serious Crime Squad became notorious for procuring convictions based on fabricated evidence to boost their statistical efficiency.

In legal systems in the Commonwealth miscarriage is averted by accepted modes of appeal procedures (which have been known to fail). The very essence of the process is indicative that judges err, make mistakes of law and fact, and also mis-apply or misapprehend the law.

The recent changes brought about by the 2010 Constitution have in reality only marginally changed the appeal process in criminal and civil matters.

The Supreme Court has a very limited and restricted role in the intervention of lower court decisions. It has no inherent jurisdiction to open cases where miscarriage is alleged or even proved.

In Kenya there is no law under which decided cases can be reopened and sadly even the new Constitution did not provide a mechanism to overturn convictions where new facts or evidence emerges, highlighting a blunder of the conviction.

The dark reality is that there are, can be, and must be cases both civil and criminal which need to be reassessed, reviewed and such blunders rectified.

The necessity to revisit convictions on a legal or factual basis, be it for perversion of justice by the investigators and police agencies or negligence of the defending and prosecuting counsel is crystal clear.

More importantly, discovery of new evidence is certainly something which needs to be addressed. In civil jurisdictions in Kenya miscarriage of justice is a well known — albeit hardly spoken — concept. Highly placed judges and former judges have been associated with alleged allegations of perverting the course of justice.

High profile

It matters not on what grounds, but the fact is that a process of reviewing even old and historical instances of injustice is a long time coming.

How do other common law countries confront the dilemma? In England there is the Criminal Case Review Commission (CCRC), which has dealt with 16,350 cases, with 471 cases still waiting, 680 pending and 15,199 completed resulting in 528 referrals. The referrals led to 341 convictions being quashed, 145 upheld, and two reserved — enough evidence that the review system is warranted.

CCRC was established in 1997 and represents a significant attempt to increase public confidence in the criminal justice system following acknowledged high profile miscarriages relating to terrorism in the 1990s such as the ‘Birmingham Six’ and the ‘Guildford Four’ — Irish Republican Army (IRA) bombing cases — where after decades in prison, previous convictions were quashed.

After investigations of applications, the CCRC refers the matter to the Court of Appeal where it is felt that there is a real possibility of successful review. In recent years CCRC has led to 50 convictions in murder cases being overturned.

Canada has The Criminal Convictions Review Group where a Minister of Justice is the ultimate arbitrator on whether there was a miscarriage. In Australia, there is a mechanism of referral through the Attorney General.

In most other countries the task of bringing to light miscarriages is left to charitable organisations, families and organisations fighting for prisoners’ justice and human rights. Even going by the lame and half hearted Truth, Justice and Reconciliation Commission Report, there is enough material to warrant a change of law.

The reborn Law Reform Commission (under Act 19 of 2013) must address the matter, and human rights organisations, prison authorities, the Law Society, even the Judiciary and prosecution agencies need to open debate.

Even in cases where sentences have been served there are many Kenyans who need to have their names and records cleared — especially in highly charged and publicised cases where politics of the day clouded justice.

Perhaps Kenyans need to echo the words of the famous English Judge William Blackstone, when he famously said, “It is better ten guilty people escape than one innocent suffer.”