Lacunas in the prosecution process that cause miscarriages of justice

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By Martin Nyakundi o’Barimo

The prosecutor occupies the most critical position in the criminal justice system in Kenya, both in the evidential and public interest tests. Much as the Judiciary may expand and increase the number of court officers, the judicial officers will still be waiting in the courts for the prosecutor to coordinate conveyance of suspects to court and to prove his case as required by the law – beyond reasonable doubt.

However, the role of the Directorate of Public Prosecutions has been put under a strict public microscope owing to very unsatisfactory and gigantic record of number of cases terminated, stayed or lost based on various gaps and holes in the entire process. It has been contended that a case may be lost in court for many reasons such as: substandard case management by the prosecution, including complete failure to know the circumstances of the accused, the witnesses and time management entirely; insufficient or wrong evidence; poor or lackadaisical investigations by the police; corruption, where the prosecution connives with the accused to create holes in the case to defeat the course of justice; the unavailability of witnesses due to persistent adjournments, lack of witness transportation or communication breakdown; as well as incompetence of the prosecuting officer in terms of confidence, command of court language, courage to face known defence counsel or/and understanding of the applicable laws.

The National Prosecution Policy has provided that, in particular, prosecution in Kenya should seek to: ensure prosecutions are conducted in a manner that meets the requirements of the Constitution; ensure prosecutions are conducted in a professional and ethical manner; guide the conduct, performance and direction of prosecutions; ensure decisions of the Office of Director of Public Prosecutions are reasoned and based on objective and ascertainable criteria; guarantee public accountability in the exercise of prosecutorial authority and; ensure that the exercise of the prosecutorial authority inspires public confidence and trust.

It is therefore important in this case to travel the prosecution journey and see where the rain started beating us.

Investigation of cases

Various courts have thrown out cases where the evidence tendered is weak and cannot secure a conviction. This is said to arise where the investigating officers conduct the investigation without interest – merely as a routine and duty without caring whether it is sufficient enough to convince the court to convict an alleged offender. A majority of investigating officers lack adequate experience and are not qualified – training in handling of evidence – even in terms of admissibility of evidence in court. Some lack the elementary and basic legal skills required to sway a court of law to admit the evidence presented in court. Others cannot adequately express themselves in court in terms of objective deliberations and answer questions as required.

It defeats jurisprudential logic when an investigating officer merely mumbles and stutters when put into task by the defence to give answers to simple questions in regard to the evidence they present in court. There is also the challenge of lack of coordination, and a lukewarm working relationship between investigating officers and prosecutors because they are under the command and direction of different state departments.

Problems also arise where investigation officers are transferred. Ordinarily, the transferred officer is supposed to hand over all the cases to another investigating officer within the station, with the necessary details on the status of the cases. However, this does not happen effectively. There is no elaborate handing-over mechanism, which leads to delay in cases as new investigating officers are merely handed investigation files without any information or explanation, such that when they come to court, they seem harassed and exhibit strange characteristics concerning the substance of the case. In proper circumstances, it is expected that the former investigating officer hands over in court and introduces the new officer to the court to create smooth continuity, to avoid delays and to have expedient and timely justice before he or she leaves the jurisdiction of the court.

Poor preparation for trial

Court sessions begin at nine in the morning to enable the prosecution conduct pre-trial conferences before coming to court. In a number of cases, prosecutors have been discontinued by the courts for giving information that is contrary to witness statements and other evidence tabled in court. It is not in the interest of the ends of justice when a prosecutor calls out the names of the witnesses while the court is in session and seeks for an adjournment when the witnesses fail to respond, clearly demonstrating s/he did not conduct pre-trial conferences.

The prosecutor is expected to know his/her witnesses in terms of their names, contacts, addresses, situations, residence and the nature of evidence they are expected to present in court. In most court hearings, prosecutors give very vague answers as to the whereabouts of the witnesses and their reasons for not attending court.

Forensics

In the modern society, forensic evidence makes it easy for the prosecutors to prove their cases in court. This is the evidence given by the experts such as medical personnel, handwriting experts, genetic biologists, biochemists and so on. It is more reliable because it is empirical and scientific in nature and status. Our country is yet to embrace this technology fully and must make the necessary effort to that direction.

Quality of prosecution

While it is true that police prosecutors have been or are being replaced with advocates as prosecutors, various courts have complained as to the quality of prosecutors. A good number of them, particularly those who are new in the service, are very quick to apply for adjournments where a stalemate is anticipated. The defence mostly gets prayers granted in court because the prosecution, in many instances, does not oppose such applications. Others lack the ability to articulately express themselves. In one instance, a young prosecutor loudly commented at a magistrates court that she would not handle a case because the “file is too big and the defence lawyer disturbs me with impossible questions.”

Sending proxies

Where suspects are out on bail, complaints have been raised, particularly in Magistrates courts, that the persons appearing in the docks are not the accused persons. There is no elaborate identification process of the suspects who are out on bail, or even the arrested ones, to ensure that only the accused persons are charged and incarcerated. With the current state of affairs, an accused person may send a proxy to court to masquerade as the accused during a mention without the knowledge of the prosecution, particularly where the investigation officer is absent or has been transferred to another station.

Sexual offences

Victims of sexual offences have much to contend with in our country. On the whole, a victim who has gone through such sad experiences starts to get more pain at the police station where the police demand sexual favours to be able to “help and assist them”.

Section 24 of the Sexual Offences Act prohibits the police from taking advantage of the victims, and provides for a penalty of ten years imprisonment on conviction. However, there are no objective measures of enforcing this provision, so that victims of sexual offences continue to suffer from further abuse by some wayward police officers, as they are mostly likely not to report such cases.

During the trial itself, sexual offences are heard with the exclusion of members of the public due to the very nature of the offence; members of the public are asked to leave the court after the offender and the witnesses, including the victim, takes the stand. This leaves room to a lot of imagination and does not help the victim at all. The cases are also known to delay until the victims lose interest in the case and the offender is released due to lack of evidence.

Prosecutors of sexual offenders must exhibit intrinsic determination to have justice prevail in the courts by ensuring the evidence produced is sufficient to convince the courts to convict guilt offenders. Section 39 of the Sexual Offences Act requires that a special data bank be kept for dangerous sexual offenders, particularly those with more than one conviction for a sexual offence, or who have been convicted of a sexual offence which was accompanied by violence or threats of violence, or been convicted of sexual violence against a child. It is not clear whether such a record exists, or a watertight mechanism for supervision of such record.

Prosecution of children offences

Section 4 (2) the Children’s Act (Cap 141) provides as follows: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be of primary consideration.” This should mean that even in a trial where the offender is a child, the best interests of that child, including the considerations for conviction, should be of primary interest.

The court is bound to take into interest the child’s age and the degree of maturity when making a decision. The Constitution also requires that a child should not be detained except as a measure of last resort. However, in almost all police stations in Kenya, child offenders are mixed together with adults openly and in full view and knowledge of the officers commanding those stations, and in complete disregard to the provisions of the Constitution and other legal requirements and provisions concerning the treatment of children in custody.

On the other hand, the majority of prosecutors of child offenders are persons who are not properly and appropriately trained in matters affecting the nature of children, and so they may not be of assistance to the court in arriving at a just finding that shall promote the interests of the child and that of the entire society. The other major challenge in the present times is mixing child suspects of serious offences, such as terrorism, with others in police custody due to the danger of indoctrination that is likely to occur in the cells that may breed more terrorists.

Banking fraud cases

The major challenge to banking fraud prosecution is the lack of willingness by banks to reveal to court the substantive matters of the fraud due to fear of customers withdrawing from the bank, and the negative publicity associated with revealing of such information because it will show the fact that the bank has weak and vulnerable systems. This is strengthened by the high rate of acquittals of fraudsters due to lack of sufficient evidence to convict the suspects.

The complex nature of banking fraud and the lack of continuous training of prosecutors handling such cases puts them at a disadvantage in terms of internalising the evolving nature of cybercrime. On the other hand, the senior officers in the banking sector are more culpable because they have super rights over their juniors and can access the system of the juniors. The main reason is that the senior bank officers are expected to monitor the entire system and to stop any suspicious transactions before they are approved. Where they fail to stop such transactions and realise the anomalies at a later stage, they sack the junior officers and do not report the fraudulent cases to the police for fear of reprisals. The final major challenge is that most prosecutors have no knowledge in accountancy and information technology. It therefore becomes very difficult for the court to understand how and where the fraud occurred so as to make a fair and justifiable finding in the end.

Adjournments

The Criminal Procedure Code (Section 205) provides as follows: “The court may, before or during the hearing of a case, adjourn the hearing to a certain time and place…” However the same section sets conditions to the provision for adjournment to include the statement, “…provided that no such adjournment shall be for more than thirty clear days, or, if the accused person has been committed to prison, for more than fifteen clear days, the day following that on which the adjournment is made being counted as the first day…”

As can be seen, the provisions of the Act are very clear and well thought out, so as not to inconvenience the parties in the process. However, the courts ignore the requirements of the proviso, such that a matter can be adjourned for periods longer than those provided on the discretion of the courts. The reasons for adjournment have now been extended to the absurd, and depict the courts as avenues of injustice, drama and absurdities.

Frequent and continuous adjournments are a sure way of defeating justice, as witnesses may lose interest in the case. Where the process is unnecessarily slow, then the freedom of the individual is affected. Every person has the right to freedom and security, which includes the right not to be deprived of freedom arbitrarily or without just cause. On the other hand, the victims, particularly those deprived of their property would want to see the end of the process and know the truth and have their property returned to them or generally have justice prevailing.

The entire prosecution process is an administrative process. Therefore, both the accused and the victim or/and their families have a right to an administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Where the entire process is subjected to delays and adjournments, it cannot be said to be “expeditious and efficient” – where the accused is unnecessarily kept in custody where he/she has been denied bail or cannot afford it in the circumstances, and witnesses get tired of the entire process and lose interest in the case. This defeats justice and the victim becomes discouraged and feels abandoned by the very avenues of justice. Society is subjected to the closure of the gates of justice and refuge. The result is lawlessness and disrespect for the Rule of the Law, which forms the foundation of peace and tranquillity of our society. Accused persons also have a right to have trial commence and conclude without unreasonable delay.

Transfer of cases

The transfer of cases from one magistrate to another is another loophole in the prosecution process in Kenya. Section 79 of the Criminal Procedure Code (Cap 75) provides that a magistrate holding a subordinate court of the first class may transfer a case of which he has taken cognisance to any magistrate holding a subordinate court empowered to try that case within the local limits of the first class subordinate courts’ jurisdiction, and may direct or empower a magistrate holding a subordinate court of the second class who has taken cognisance of a case and whether evidence has been taken in that case or not, to transfer it for trial to himself or to any other specified magistrate within the local limits of his jurisdiction who is competent to try the accused and that magistrate shall dispose of the case accordingly. This proviso has been applied mutatis mutandis to befit the current structure of the magistrate courts.

Further, Section 200 of the Code contains various provisions guiding conviction on evidence partly recorded by one magistrate and partly by another. It provides as follows for avoidance of doubt: “…where a magistrate, having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may: i) deliver a judgment that has been written and signed but not delivered by his predecessor; ii) where a judgement has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or re-summon the witnesses and recommence the trial.”

The new magistrate may also pass a sentence or make any other order that he would have made if he had delivered judgment. However, where a magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re-summoned and reheard, and the succeeding magistrate shall inform the accused of that right.

If a trial continues without the magistrate informing the accused of the right to recall and rehear witnesses afresh, this may be a ground for appeal. Actually, where the accused person is convicted upon evidence not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and order a new trial.

Transfer of cases may therefore lead to wastage of time and resources because the entire trial may commence afresh under the directions of the High Court. Besides, various magistrates are known to have illegible handwriting that is difficult to read, which may lead successors to rely on guesswork to construct what the original magistrates intended or contended. This is a grey area as far as justice to the accused and the victims go. It should be noted that this is aimed at protecting the accused person from injustice, because various courts have different eyes and cannot come to the same finding.

On the other hand, the provision prevents a finding on partial facts, which may create injustice. However, this is a major loophole that has been misused by various accused persons to defeat justice because when any case starts afresh, where such an application has been made, it is difficult to trace witnesses, particularly where such an application is made a long time since the commencement of the case. In some instances, some witnesses may not be willing to testify because it is likely to remind them of an ordeal they want to put behind them. A victim of rape is likely not to testify again, having testified once or twice before. Some witnesses may have died or relocated. It is always highly likely that an application for a retrial leads to the release of the accused for lack of evidence. It is therefore recommended that each court sets up a committee comprising of more than one magistrate or judges to hear and determine any application under this section by the accused. This is to prevent arbitrary misuse of this section by accused persons to defeat justice and undermine the rule of law.

Wobbly coordination between courts, prosecution, and prison authorities
In various instances, there lacks coordination between the players of the prosecution process, which leads to confusion in the courts. For instance, an accused person who is already serving a prison sentence may not be brought to court for a hearing or a mention due to a communication breakdown. This state of affairs creates a lot of inconvenience to the witnesses and to the complainants, who report to court and are turned back due to lack of coordination by the players in the prosecution process. In other instances, an accused person in remand may not be brought to court by the prison authorities for the same reasons. It is quite tormenting when a case in the Cause List cannot be heard because the accused was not aware that he or she was expected to be in court or knew he was required in court but the prison authorities did not bring such a person to court.

Bail and Bond policy guidelines

The Judiciary has enacted the Bail and Bond Policy Guidelines to harmonise the issuance of bail and bond by the courts because of various complaints by the accused persons – that the terms are too exorbitant or too high to be afforded by accused persons, and to respond to the current challenges of crime. The Policy further provides that in terrorism cases, the court may, in the first instance and upon the written request of a police officer, extend the time for holding the suspect in custody for a period of up to thirty days. Before this period expires, the court may extend the period of detention, upon an application of the police officer.

However, the court can only extend the time for remand for a period not exceeding ninety days, which shall include the period for which the suspect was first remanded in custody. It could be argued that ninety days is too short a period for a dangerous suspect who is likely to promote terror ideologies when released from court. Others argue that this period is too long to keep a suspect in custody on mere suspicion that the individual is suspected of engaging in terrorist activities. What parameters should the courts use to decide who is to remain in custody for as long as ninety days? What if the police are merely punishing an innocent person?

Sadly, there are various incidences where a murder suspect is released on bail terms and he/she is later arrested on suspicion of killing the witnesses. The police have also shot dead several suspects who allegedly engaged the police in a shootout and who (the suspects) are later found be out on bail or bond. This should mean that dangerous suspects perpetuate their bad character as a continuance without living to the requirements of the bail and bond terms granted to them.

From the foregoing, it would appear that the process of bail and bond lacks a supervisory mechanism to ensure compliance with the various provisions that guide the process from the police custody to pre-trial detention in the prison remand. This includes child offenders and other special categories to traffic offences.

The public, on the other hand, expects that every arrested person should be kept in the cells or prisons by all means, regardless of whether they are accused of a felony or a misdemeanour. For instance, if a person is arrested on suspicion of having been involved in burglary or house breaking, the public expects not to see that person again for some years. It therefore does not make sense to them when the same suspect is seen back at the village where he or she comes from. In such instances, people become agitated and end up taking the law into their own hands. In short, our public has little knowledge in regard to criminal procedure.

Misuse of Alternative Dispute Resolution

The Constitution of Kenya provides that in exercising judicial authority, the courts and tribunals shall be guided, inter alia, by the principles of alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms (Article 159). However, traditional dispute resolution mechanisms shall not be used in a way that a) contravenes the Bill of Rights, b) is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality, or c) is inconsistent with the Constitution or any written law.

It should be noted that the Constitution does not limit the application of traditional dispute resolutions mechanisms to civil matters as provided under Section 3 (2) of the Judicature Act (Cap 8). As a result, courts have started applying traditional dispute resolution mechanisms in criminal matters and even extending such application to serious offences such as murder [see Republic vs. Mohammed Abdow Mohammed (Criminal Case No 86 of 2011)].

This is a serious tragedy to have occurred in our country because it is likely to encourage others to commit murder for personal gratification or to remove others from their way because they have funds to compensate the families of the victims as may be provided in their customs. Article 159 of the Constitution seems to jocularly treat all criminal matters as if they were petty disagreements and is a sure source of miscarriage of justice in Kenya, as it encourages rich criminals to thump their chests while propagating criminal acts because the poor are ready to receive the compensation that they may demand under traditional dispute resolution mechanisms. This Article must therefore be amended to apply only to demeanours and civil matters for the sake of prevention of abuse.

Admissibility of evidence

A court in session at Eldoret Law Courts

The Constitution, in Article 50 (4), speaks openly on evidence that violates a right or a fundamental freedom thus: “Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice”

While the constitution provides that any evidence that violates rights such as privacy shall be excluded, it still qualifies such exclusion. It can only be excluded if it would render the trial “unfair” or otherwise “detrimental to the administration of justice”. What the Constitution is saying is, provided the illegally obtained evidence will help the court to arrive at a fair finding, it should be admissible in the courts.

Illegally obtained evidence is that which is obtained by means or acts that are illegal and includes evidence obtained by a violation of constitutional provisions, statutory or case law. Such evidence includes that obtained through: a) illegal searches, b) seizures, c) commission of crime, d) breach of contract, e) trickery, f) deceptions, g) bribes, h) threats and/or i) inducements. This article implicitly allows evidence obtained through trickery or even inducement to be mandatorily included in the admissible evidence in court leading to miscarriage of justice because it involves a violation of rights and fundamental freedoms, or leads to a commission of a crime and cannot be justified. The Constitution provides in Article 31 to the effect that every person has the right to privacy, which includes the right not to have: a) their person, home or property searched; b) their possession seized; c) information relating to their family or private affairs unnecessarily required or revealed; or d) the privacy of their communication infringed.

The Constitution therefore seems to be giving a right by the right hand and taking it away by the left hand. In various countries, including the United States, they have mandatorily excluded evidence illegally obtained through, inter alia, unreasonable searches and seizures after the Fourth Amendment of the American Constitution in 1941.

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. It requires that any searches and seizures by the police or investigating officers can only be conducted with a court warrant. The reason for the search must be absolutely justified and the search warrant must be supported by an oath that describes the place to be searched and the persons, materials, tools or substances to be seized. This proviso of the Constitution should be amended for the achievement of the ends of justice.

Writer is a legal researcher at Mount Kenya School of Law, Parklands

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