National Coroners Service Bill calls for debate

By PRAVIN BOWRY

Laws on investigations of deaths, other than by natural causes, are set to change with the National Coroners Service Bill, 2011, coming up for debate in the National Assembly soon.

The Bill as published is weak and needs to be synchronised with other existing laws and even modern conceptional thinking on the subject.

Kenya has never had concrete and adequate laws to deal with matters relating to investigations of deaths by violent criminal acts, or extra-judicial killings, or deaths in the prison or police custody — all matters which not only have led to untold misery for the families but also nationally.

The deaths of Pio Gama Pinto, Josiah Mwangi Kariuki, Robert Ouko, and Julie Ward, are some of the high profile deaths which bring to the fore the dilemma of weak laws implemented in a lackluster manner, largely by indifferent magistracy.

Unlike in Tanzania and Uganda, we have had no separate Inquest Act and our existing laws on matters relating to suspect deaths are covered most inadequately by four sections in the Criminal Procedure Code.

It is, therefore, startling that the new Bill does not repeal or amend sections of the Criminal Code dealing with inquests.

The proposal under the new Bill is to have an independent body called the National Coroners Service (NCS) with a Coroner General who must have a degree in bio-medical sciences with at least ten years experience appointed by the President and 47 other County Coroners who will be appointed by the Public Service Commission all with scientific qualifications.

NCS will have jurisdiction to investigate the cause of death where the deceased person is reported to have died violently or by an unnatural method, or in cases of sudden death or in police or prison custody within one year.

Additionally, matters relating to burial and cremation permits will fall under NCS which will also have powers to give waivers of post-mortem exams, order post-mortem examinations and exhumations.

Complete records

Unlike the present situation where police investigate deaths, send files to the magistrates who may or may not order an inquest, the NCS, in all cases of death where criminality is evident, will forward the file to the Deputy Director of Public Prosecution and Inspector General of Police.

Coroners will also be mandated to give full and complete records in respect of the death of a deceased person to the police, court of law on request, surviving spouses or other interested persons.

The Bill gives absolute powers to the Coroners on the basis of forensic medical services without precisely bringing independent forensic bodies into its ambit.

The exclusion of lawyers and judges from the Coroner’s functions is likely to bring forth many legal problems based on investigations and evidential matters.

The efficacy of having only bio-medical scientists dealing with matters of death is questionable and instead of scientists only acting as Coroners, it would be prudent to incorporate, by law, magistrates, judges and also lawyers and the medical profession.

In coroners’ work, four questions are always important: who is the deceased, when, where and how the deceased came by his or her death? The scientists can decide that but what about responsibility of bringing about death? It is anticipated that coroners will decide on facts rather than attribute responsibility — responsibility must of necessity involve legal mechanisms on which scientists will need guidance.

The Bill does not take into account the modern conception of coroners being replaced by a team of medical examiners, and forensic pathologist with legal administrative personnel to assist. The trend is that individuals cannot and should not perform the onerous task of factual matters and attributing blame.

Similarly, matters of representation by interested parties — be it family or state or human rights organisation have not been addressed and equally the amendments to the Commission of Inquiry Act, too, have been left out.

Will the NCS have its own forensic back-up mechanisms or will it rely on the existing inadequate and creaking facilities to bring about meaningful change?

The Bill does not deal with organised crime where deaths take place en masse. Human and civil rights organisations must be given mandate to represent the dead in event of massacre and other conflict.

Parliamentarians must bear in mind history when debating the law. Can law help in avoiding the debacles of JM Kariuki, Julie Ward, Robert Ouko and George Saitoti death saga.

Death of a citizen in Kenyan community invokes customs, rites, traditions and many taboos as well. Burial disputes where suspect deaths are alleged cause great amount of acrimony. Rights of warring beneficiaries may well have to be brought in.

Hopefully death, be it road accidents or tribal clashes, or killing of alleged criminals or death in prison or police custody are conclusively and fairly dealt with — with no criminal escaping justice.

It is gratifying at least that deaths in police cells, for example, will not be investigated by the culprits themselves – one mammoth step towards stopping police brutality.

Stakeholders need to open frank debate on the Bill.