Let’s create an office of Public Defender as a matter of urgency

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African American in Prison

By Robin Nyore

The criminal trial justice system in Kenya is one that is robust and extraneous. It’s composed of the Office of the Director of Public Prosecutions established under Article 157 of the Constitution, as the prosecuting authority acting for the State, the magistrates and judges, as the impartial umpire adjudicating these cases before the courts and the accused.

Criminal trials and courts in Kenya are at best a showcase between the State – through the DPP, a qualified lawyer in his/her own standing – and the accused, most often than not a layman. It’s a battle between two sides, one equipped with the knowledge and training of the law, and the other a citizen whose expertise is sometimes irrelevant to the forum at hand. One may call this spectacle archaic, even barbaric.

The problem with such an arrangement is that it can be said to be biased. One may argue it being equated to a boxing match, if you like, between a professional boxer and an average Joe who’s never thrown a punch – except perhaps through a hired hand.

A case for

Currently in Kenya, criminals are afforded legal representation by the courts (High Court) only in cases of the capital offence of Murder, contrary to Section 203 as read with section 204 of the Penal Code Cap 63; Laws of Kenya. The subject of this endeavour is that since the offence is of a serious nature (whose penalty is death by hanging), then the accused ought to have a trained advocate represent him/her in trial. However, robbery with violence, which is also a capital offence as prescribed by Section 296 (2) of the Penal Code, the accused is never afforded legal representation unless he/she appoints one out of own means. One may ask, is the liberty of a citizen to be weighed or legal representation be measured by the seriousness of the offence? Furthermore, is access to justice, as prescribed by Article 48 and 50 2(h) of the Constitution, curtailed by the fact that only the offence of murder qualifies one to a State-appointed advocate?

The conundrum continues: is the criminal debate that is before the impartial umpire one-sided – that is, one who understands the law against one who is subjected to the law? And again, why does the State, being the complainant, have the right to a trained representative and the accused, a layman, not?

The liberty of any citizen should be guarded properly especially when it is dangling on a thread in a court of law. In every criminal trial, whether the offence is theft or rape, ought to have a balanced outfit of two opposing legal professionals representing each side courageously for the benefit and in the spirit of justice. After all the mantra is justice is blind – and so it should be.

One of the main reasons in favour of having assured competent legal representation for an accused is that the defence will need to analyse evidence and question the State’s case. The accused requires assistance to table their merits before the court of law and mount a defence that might and can rival the State’s, with the aim of ensuring that the right verdict rules supreme.

In the United States of America in 1931 in the State of Alabama, in Powell vs. Alabama, nine black youths were placed on trial after two young white women claimed they had been gang-raped. On the day of trial, the boys were not appointed a defence lawyer by the judge but were represented by two unqualified people – a real-estate agent and a long retired attorney. The two “defence counsels” neither questioned the evidence the prosecution tabled, despite the fact that doctors who examined the two young women admitted that they could not find any proof of rape. The nine were ultimately convicted.

Subsequent appeals saw the case finally land at the US Supreme Court, which over-turned the trial court’s conviction. One of the judges, Justice Sutherland, stated, “Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with a crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both skill and knowledge adequately to prepare his defence, even though has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”

In David Njoroge Macharia vs. Republic [2011] eKLR, the Court of Appeal in Nairobi affirmed, “The right to legal representation is universally acknowledged as a fundamental right… The counsel’s role at the trial stage is most vital. This is because of his knowledge of the applicable laws and rules of procedure in the matter before the court, and his ability to relate them to the fact, sieve relevant, admissible, and sometimes-complex evidences from what is irrelevant and inadmissible. A lay person may not have the ability to effectively do so and hence the need to hire the service of a legal representative.”

The learned judges further stated, “Strongly related to the adversarial system is the principle of equality of arms, which is an essential feature of a fair trial. Equality of arms is an expression of the balance that must exist between the prosecution and the defence.”
If the State uses all the resources in its disposal to prosecute crimes, then the same should use the same resources to afford an accused a fair trial by providing him or her legal representation at its expense. Being a suspect or an accused does not in any way limit one’s constitutional rights. One is necessarily innocent until proven not.

Article 50 (2)(h) of the Constitution supports this stance: “…to have an advocate assigned to the accused by the state and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.” Nowhere in the said provision does it state only in murder offences. In other words, it should not matter if the offense is a misdemeanour or a felony.

Maintain equilibrium

The creation of the Office of the Public Defender is not only a matter of according rights to the accused but also an issue of maintaining equilibrium in the criminal justice system. The office’s sole purpose would be to offer legal representation to accused persons who are unable to hire an advocate. It would ensure that justice dispended by the court is not one-sided, and that the defence has an excellent fighting chance in court. Furthermore, as officers of the court, both the DPP and the advocate (defence counsel) would assist it get to the truth of the matter in the clearest and possibly quickest manner.

As a nation and as a growing democracy, Kenya still has a long way to go before becoming the shining example that the 2010 Constitution aspires her to be. And for that to happen, she should be accorded every opportunity to develop herself. The independence of the Judiciary and equal access to justice are prime examples of such steps. Being an arm of Government, the Judiciary should be a beacon of light that permeates even the darkest corridors of injustice. Accordingly, the players therein should work together to ensure the small man never suffers injustice, thus furthering the reach that is justice for all.

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