Assessors’ role in courts

By Musyoki Kimanthi

Q: I understand that the verdict of the assessors in a murder trial is not binding on the judge. Are the assessors, therefore, necessary in the criminal justice system if judges can overrule them?

A: The evolution of the assessor system can be traced to the 1902 East Africa Order-in-Council Number 31. It provided, among other things, that in all cases, civil and criminal, to which natives are parties, every court (a) shall be guided by the native law so long as it is applicable and is not repugnant to justice and morality or inconsistent with any orders in council or ordinance or any regulation or rule made under any order in council or ordinance.

(b) It shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay. The wording of this order provided room for Africans to participate in the administration of justice. The fact that the courts were to be guided by the native law meant that few competent Africans would be consulted to give their opinion on the matters in question.

The jury system, as practiced in the western world was more vigorous and the assessor system was introduced as a substitute for it. The 1897 Native Courts Regulations section 8 provided for the trial of an accused with the aid of assessors.

Vigour of the jury

The High Court could invite co-operation of native assessors with a consultative voice only for the purpose of jury information where required, respecting native law and actions.

The 1907 Courts Ordinance made it mandatory for three assessors to sit alongside a High Court judge for trial of any person committed to the High Court.

The assessor system was retained after independence. The value of assessors was explained by Lord Atkin in the 1942 case of Dhalamini–vs-King when he stated that "…the duty of an assessor is not simply to aid, it operates and is no doubt intended to operate as a safeguard to natives accused of a crime and a guarantee to the native population that their own customs and habits are not misunderstood."

Though the assessor system has survived the rigours of independence, its roles have never been defined in very clear and straightforward terms.

The law seems to take away with one hand what it gives with the other. For example, section 262 of the Criminal Procedure Code states: "All trials before the High Court shall be with the aid of assessors."

Noble intention

The word ‘shall’ makes it compulsory for the High Court to sit with the aid of assessors. Any High Court’s decision sitting without assessors will be reduced to a nullity. This seems to be a positive move towards recognising the central role of assessors, but by dint of section 322 of the same Act, this is watered down when the law goes further to provide that the judge in giving his verdict, shall not be bound to conform to the opinion of the assessors. This in effect means that the judge can ignore the opinion of the assessors.

The intention to keep assessors as aides to the court is noble, but one cannot help thinking that they are unnecessary given that very often judges disregard their opinion. The procedure for their selection is also haphazard. Perhaps what we need to do is to carry out reforms to remove the ‘give and take’ practice that characterises the assessor system, among other key reforms so desperately needed in our justice system.