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Focusing on victims in criminal justice good

By Demas Kiprono | January 22nd 2021 at 00:00:00 GMT +0300

A section of Judges follow proceedings at the Supreme court on Monday,January 11,2021 during a retirement ceremony for Chief Justice David Maraga. [Collins Kweyu,Standard]

In the Kenyan criminal justice system, the role of the victim in trials has traditionally been very minimal and limited. To begin with, criminal justice has always been viewed as an attempt by the State to rein in bad characters on behalf of the public. In many instances, cases are listed as "Republic versus the accused". The philosophical reason behind this is the belief that criminal law should serve the interests of society and not the individual victim.

The role of the victim, usually viewed as a 'private party', has for a long time been limited to providing evidence in terms of witness testimony or physical evidence for the prosecution.

For long, the victims have only been there to provide evidence and have often found themselves on the receiving end of pointed questions from police officers and investigators before trial. During the trial, they are examined, re-examined, and cross-examined by prosecutors, the accused and lawyers representing them and judges and magistrates.

In criminal justice, State control inevitably pits the power of the State and all its machinery against the accused. This creates a power imbalance that legal systems try to rectify by codifying express provisions meant to protect the accused's rights, including the very high standard of proof of 'beyond a shadow of doubt' or 'beyond any reasonable doubt'.

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In doing so, criminal justice inadvertently and wrongly eclipses the recognition of the victim's inherent interests, needs and rights.

Over the past decade, there has been a shift towards a victim-sensitive criminal justice that considers the needs of victims throughout the process. In Kenya, this has manifested through Article 50 (9) of the Constitution which integrates the rights and welfare of victims as a part of the fair trial process and the enactment of the Victims Protection Act (VPA) of 2014 which protects the interests of victims of crime and abuse of power, and provide them with better information and support services. It also provides for reparation and compensation of victims and special protection for vulnerable victims. Other laws that protect victims include the Sexual Offences, Children's, and Witness Protection laws.

Three accused persons from left: Ruwa Mwangolo, Hamisi Salim and Hamisi Kea at a Mombasa Court in Mombasa County on Thursday September 10, 2020, during a mention of their case where they pleaded guilty to the charges of dealing with a live endangered species namely Pangolin without permit. [Kelvin Karani, Standard]

A very important element of the VPA is that it requires that every victim is allowed to be heard or to respond before any decision affecting him is taken. This means that victims have the right to participate in the criminal trial process either in person or through a representative or lawyer. They are empowered to know what evidence the prosecution or defence will be relying on and they may give their views at every stage of the proceedings, including making a statement before the sentencing of the offender via a Victim Impact Assessment statement. During the trial, victims are empowered to adduce evidence that they feel was left out by the prosecution including giving oral evidence or even filing written submissions for the court's consideration.

Victims and their advocates can no longer be considered as passive observers in criminal proceedings. Be that as it may, their participation cannot be active and parallel to that of the prosecutor.

Innocence or guilt

This means that ideally, the victim or their lawyer should work closely with prosecutors and actively participate to bring out what they strongly believe has been left out by the State when prosecuting the matter. The participation of the victim should be perceived as assisting the court and not the Director of Public Prosecutions per se.

Courts being impartial arbiters are mandated to determine the accused's innocence or guilt. Their primary function is to hear and determine whether the accused engaged in the conduct he was charged with and determine the appropriate punishment. It thus follows that the rights of the accused cannot be considered in isolation without regard to those of the victims who have a legitimate interest in the process. The Criminal Justice system should therefore cultivate a process that inspires the trust of both the victim and the accused.

Importantly, the VPA establishes a Victim Protection Board that is mandated to play a policy development role. Additionally, it establishes a Victim Trust Fund to cater for expenses arising out of assistance to victims of crime. If the fund is properly run and equipped, the trust can play a vital role to ensure that victims are promptly catered for and even compensated.

Demas Kiprono is a constitutional and human rights lawyer. [email protected]

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