BY BEVERLINE ONGARO
Worldwide, the personification of justice is that of a scale being balanced, either by a goddess or god of justice, or the scales balancing on their own. The philosophy behind this personification is that disputes between adversaries in any legal proceedings will be determined justly: that there is a scale of fairness for such determination, which is invisible but both latent and overt. Globally, this symbol of personification of justice is depicted as statues at court houses, or as logos or emblems of law enforcement agencies, legal organisations and law institutes.
But within the contested space in the justice system, victims of offences often remain bystanders, an afterthought and an appendage, especially in cases where the victims are not witnesses in given legal proceedings. Even in legal proceedings wherein victims of offences are witnesses, their rights and needs are not adequately met. This shortcoming comes into sharp focus in an adversarial system of justice where victims of offences are highly susceptible to intimidation, harm and retaliation from offenders in the course of investigations, and court proceedings. Courtroom experience may be particularly difficult, harrowing and frightening.
This is compounded when the victims’ suffering, loss and trauma are not given due consideration in the justice process, and exacerbated by victim-blaming or biased attitudes, behaviour or practices. Conclusively, victims of offences-feeling alienated from the justice system do not report crimes, or choose not to proceed with cases to avoid imminent harm from offenders, thus reliving their suffering and trauma in the course of legal proceedings. This aforementioned narrative is an accurate description of experiences of victims of offences in many jurisdictions, including Kenya, whose justice system is an adversarial one. This article examines cursorily the position of the victims of offences prior to and after the promulgation of the Constitution of Kenya, 2010, and makes suggestions for the effective implementation of the Victim Protection Act, 2014.
Position of victims of offences prior to the Constitution of Kenya, 2010
There is a growing global recognition and consensus that the test of the quality of any justice system is how it treats victims of offences, particularly, whether the victims’ rights are respected, protected and promoted, and their needs met, regardless of whether they are witnesses in legal proceedings or not.
Kenya is one of many jurisdictions that take cognizance of the importance of affording victims of offences their rights and meeting their needs. However, this cognizance has been very deliberate. Prior to the promulgation of the constitution in 2010, particularly the years preceding 2003, victims of offences were confined to being bystanders in court proceedings unless they were prosecution witnesses. Even as prosecution witnesses, victims had no avenue to articulate how they had been affected by offences, to aid courts in arriving at their decisions. This forlorn situation was slightly alleviated when Section 329 of the Criminal Procedure Code, Chapter 75 Laws of Kenya was amended by Parliament, through the Criminal Law (Amendment) Act, No. 5 of 2003. The Act gives recognition to other victims apart from primary victims of crimes, such as immediate family members, defines harm to include physical bodily harm, mental illness and nervous shock, and provides for the use of victim impact statements during criminal proceedings. Despite this legal provision, victims’ rights and needs were not catered for – victims of offences have to contend with the risk of imminent danger from offenders, re-traumatisation during court proceedings and inadequate information on the court proceedings, thus curtailing their meaningful participation in them, and limited or no access to legal and psychosocial support services.
Position of victims of offences within the framework of Constitution of Kenya, 2010
The transformative Constitution of Kenya, 2010, aims at ensuring the rights and welfare of victims of offences are fulfilled. Article 50(9) of the Constitution has mandated Parliament to enact a legislation providing for the protection, rights and welfare of victims of offences. Article 261 of the Constitution imposes a time frame of four years, from the date of promulgation of the Constitution on 27th August 2010, within which the legislation is to be enacted. In 2014, Parliament enacted the Victim Protection Act, 2014 (VP Act), which was assented to on September 14, 2014, and commenced operation on October 4 of the same year.
The VP Act has far-reaching provisions which will revolutionise the justice system, particularly the position of victims of offences. The Act spells out its purpose as being “to provide protection to victims of crime and abuse of power, and to provide them with better information, and support services; to provide for reparation and compensation to victims; to provide special protection for vulnerable victims.” Section 3 of the Act elaborates the object and the purpose of that law as to “recognise and give effect to the rights of the victims of crime, and to protect the dignity of the victims: through providing them with information, support services, reparations and compensation from the offenders; establishing programs for vulnerable witnesses; supporting reconciliation through restorative justice mechanism; and preventing victimisation and re-victimisation of victims.”
The VP Act has a substantial definition of victim, and its application thereof. Section 2 of the Act defines a victim as, “any natural person who suffers injury, loss or damage as a consequence of an offence.” The Section also recognises that victims may be vulnerable, by virtue of their age, gender, disability or persons who require special justice and support. Section 5 of the Act explains that the Act is applicable to any person in Kenya irrespective of nationality, country of origin or immigration status, who is a victim of crime in Kenya. The Act is also applicable outside Kenya where the victim is a citizen of Kenya.
Obligation to duty bearers
The VP Act imposes obligation on duty bearers to afford victims of offences rights, and to fulfil the victims’ needs. Section 4(1) of the Act imposes an obligation on courts, administrative bodies and person performing functions under the Act to adhere to constitutional provisions of Article 10 on National Values and Principles of Governance, Article 27(4) on nondiscrimination, Article 47 on fair administrative action, Article 48 on access to justice, and Article 49 on the rights of arrested persons. The VP Act stipulates, in detail, in Section 4(2) on how the obligation is to be carried out.
The courts, administrative bodies and persons performing functions under the Act are further obligated in Section 4(2) to preserve the dignity of victims of offences throughout trial; give an opportunity for the victims to be heard before any decisions affecting them are made; treat the victims in a manner that take into account the victims’ cultural values and beliefs; address the victims in a manner appropriate to their ages, intellectual development and in their language of choice; protect the victims from secondary victimisation during proceedings; respect the victims’ right to contact their family or primary care giver; and accord the victims legal and social services of their choice at the State’s expenses.
Section 6 of the Act mandates persons assisting victims of offences to undertake preliminary assessment of the victims, classify the victims as either general or vulnerable victims, and file a report on the victim as prescribed in Section 7 of the VP Act within 24 hours. Section 11 of the Act imposes an obligation on person dealing with victims of offences to secure their safety, for example, secure a place of safety for vulnerable victims, food and shelter, urgent medical treatment, and psychosocial support and police protection where appropriate.
Rights of victims of offences
The import of the VP Act is that it explicitly expounds and elaborately guarantees victims of offences rights already afforded in the constitution. Section 8 of the Act stipulates that victims of offences have a right to privacy from media of all kinds, unreasonable intrusion from health professionals and from any person. Victims of offences also have a right to confidentiality of their communication with victim support service providers. However, the victims may waive their right to confidentiality when they publicise or consent to publication of their cases.
Section 9(1) of the Act stipulates the rights of victims of offences during the trial process. These are personal presence or through representatives of their choice; determination of trial without unreasonable delay; to give views during plea bargaining; right to fair hearing; advance information of and access to the evidence that the prosecution and defence will rely on; assistance of an interpreter by the State; and information of the charge the offender faces in detail. In circumstances where personal interests of the victims are affected, Section 9(2) (a) of Act stipulates that the court is required to permit a victim’s views and concerns to be presented, and to consider those views. The victim may present such views and concerns in person or through a representative.
The Act seeks to attain the delicate balancing act of the rights of victims and the rights of accused persons. As such, Section 9(2) (b) places a limitation on the presentation and consideration of victims’ views and concerns during trial: that they are not presented in a manner that is prejudicial to the rights of the accused persons, or in a manner inconsistent with fair trial and impartial trial.
Section 10 guarantees the right of victims of offences to be free from intimidation, harassment, bribery and corruption; consideration of the victims’ safety and of their family members during determination of bail and release of offender; and protection of victims’ property.
Section 12 provides that a victim of criminal offence may make and present a victim impact statement to a court sentencing a person. The Act also accommodates the desire of victims of offences who may wish to seek redress in informal proceedings, and gives recognition to alternative forms of dispute resolutions. Section 15 of the Act provides that victims of offences have a right to restorative justice, as long as it coheres to Article 159(3) of the Constitution. The Act seeks to provide a concrete and coherent framework for restorative justice. It provides a chance for failed restorative justice to proceed for final determination in criminal proceedings, and affirms the victims’ right to seek appropriate relief civil proceedings. The Act also makes it mandatory for an agreement for restoration and redress agreed between the victim and the offender to be recorded and enforced as an order or the decree of the court.
Section 19 stipulates that victims have a right to information that is necessary to realisation of their right. Section 20 affirms a victim’s right to submit information to the police on decisions to lay charge, appeal and withdrawal. The victims also have a right to submit information to courts during plea bargaining, bail hearing and sentence; and to the Advisory Committee on Power of Mercy (ACPM) while making decisions to pardon convicts.
Section 23 affords victims of offences the right to compensation from offenders for economic loss, loss or damage to property, loss of user over property, personal injury, medical treatment, and of necessary transport and accommodation. Further, victims have a right to restitution of property. When a court makes a compensation order against a convicted person, the court may enforce the order as a judgement in civil proceedings. Further, according to Section 24 of the VP Act, courts may award victims of offences compensation for loss or injury occasioned from an offence. Such compensation shall be charged from the Victim Protection Trust Fund.
Section 31 of the VP Act establishes a ten member Victim Protection Board. Section 32 specifies its functions to include advising the Cabinet Secretary for Justice on “Inter-agency activities aimed at protecting victims of crime and the implementation of preventive, protective and rehabilitative programmes for victims of crime.” Section 22(1) of the Act mandates the Cabinet Secretary to establish victim services in all counties and ensure equal access to those services. The services include equal access to court rooms and prosecutors’ services, provision of facilities for persons with disabilities, provision of adequate and effective medical services, and to fit every courtroom with waiting facilities for victims, separate from offender’ holding facilities.
Considerations for efficacious implementation of the Act
The import and the impact of the VP Act will be tangible if it is effectively implemented. It is therefore important that the following reflections and concerns are taken into account to secure its efficacy.
First, glaringly, the Act has no provision for enforcement of the rights of victims of offences. For example, if the police violate the victims’ rights, where do they seek enforcement of those rights from? Do they seek redress within the police structure at the police station where the violation has taken place, the Independent Policing Oversight Authority, the Commission on Administrative Justice (Ombudsman), the Kenya National Commission on Human Rights, or the courts? By the same token, if violation takes place during trial, do the victims seek enforcement from the same court where the violation took place, or from the High Court’s Constitutional and Human Rights Division? Equally, if the violation is by the ACPM, where ought the victims to go for enforcement of their rights? What are the forms and the formalities for seeking enforcement of those rights; formal, informal or both? There ought to be provision and clarity on the enforcement of the victims’ rights.
Secondly, commendably, the Act guarantees victims’ rights to submit information to the police, courts and the ACPM. The assumption is that victims of offences will always know when decisions are being made by these government agencies in order to submit information to them, in time. This is not accurate, considering how problematic it can be to access information on decisions within the Kenyan justice system expeditiously and economically. On this premise, there is the likelihood of victims being unaware when the police, courts and ACPM are making decisions. It is therefore critical that the charter on the rights of the victim, envisaged in section 19(4) imposes a positive obligation on the government agencies in the justice system to provide such information to victims of offences rather than hope that the victims will be aware of when they will be making decisions and therefore furnish information to those agencies well in advance.
Third, Section 21 of the Act stipulates that the Cabinet Secretary in charge of Prisons and Correctional Services shall give information to victims of offences upon request, regarding where an offender is serving custodial sentence and the due date of release of the offender. This provision situates a victim of offences in the position of a seeker of information on a decision in the justice system. This is not feasible and purposive to the general object of the Act, which is the safety of victims. Consider, for example, a situation where an offender escapes from custody. Here, it is imperative that victim is furnished with prior notice on the release of an offender or notice on the whereabouts of the offender if detained in hospital, or discharged from the health facility – whether victims request for it or not. In cases where offenders escape from health facilities where they are being held or prisons, victims need to be provided with information as soon as is practicably possible.
Four, while the Act provides victims of offences have right to information, it is essential that apart from merely furnishing the victims with information, that such information and decisions by government agencies are explained to victims. For example, where there is disparity of compensation orders awarded to victims of same offence because of different degrees of the same crime, especially latent ones as psychological harm, an explanation may dissipate feelings of impotence, frustration and unfairness among victims of offences, who may feel they have not been given due recognition by government agencies attending to them.
Five, a cursory read of the Act shows that judicial and medical services providers will play a significant role in the implementation of the Act. For example, in relation to the judiciary, courts have to allocate sufficient time for victims of offences to present their views during trial. The courts have to proceed with trial at the pace of the victims, especially vulnerable ones. Therefore, the courts have to delicately balance the rights of the victims, the rights of offenders, and their constitutional mandate to dispense justice expeditiously. Yet, glaringly, the Act has not specifically earmarked Judiciary’s involvement in its implementation, either, for example, as a member of the Victim Protection Board, or to work in consultation with the Cabinet Secretary to customise the courts premises and proceedings to fulfil the rights of the victims of offences. Already, some legal practitioners are experiencing challenges in courts wherein judicial officers perceive unfettered access by victims of offences as to cause delays of courts proceedings. It is for the Judiciary to sensitise its officers on the import of the Act, fiscally plan how it will implement the Act, and implement effective case management that accommodates the unique interests and situation of victims of offences.
By the same token, the medical service providers are not specifically earmarked in the VP Act, yet they will be expected to provide medical support to victims of offences. The providers will have to equip their facilities accordingly and allocate resources towards meeting the needs of victims of offences as envisaged in the Act. It is for the Cabinet Secretary and the Victim Protection Board to work in concert with the Judiciary and other relevant bodies with the responsibility of providing medical services in accordance with the VP Act.
Six, the government agencies that have the mandate of implementing the Act should consider having a victim automated notification system to avert a situation where some victims of offences could fall through the cracks of the system.
Seven, there ought to be an in-built mechanism within agencies attending to victims of offences, for the victims to express their opinions regarding support services rendered to them.
Eight, the Victim Protection Board established by the Act is yet to be formed, four months from the date the Act came into effect. Given that the Cabinet Secretary for justice will put measures in place for the protection of victims of offences upon the advice of the Board, it stands to reason that the Act cannot be effectively implemented in the absence of the board. It is thus imperative that board members are appointed and commence work immediately. Otherwise the VP Act will join the ranks of other laws whose implementation are inordinately delayed. For example, the Board members established in the Counter-trafficking of Persons Act, 2010, were appointed in July 2014, four years from the date the Act was enacted. The dire urgency for the implementation of the VP Act cannot be gainsaid, particularly when one considers that this month marks the seventh year since the Kenya National Dialogue and Reconciliation Agreement was signed. This agreement heralded the quest to give due recognition and afford appropriate redress to the victims of 2007/08 post-election violence. But then, the majority of the victims are yet to receive due recognition and appropriate redress, a poignant reminder why the VP Act ought to be urgently and effectively implemented.
Nine, it is critical that legal practitioners are well versed with VP Act, and the general impact of offences on its victims; the harm, psychosocial suffering, loss and trauma so that they carry out effective advocacy on behalf of their victims clients.
In conclusion, it is undisputable that the VP Act brings about far-reaching and revolutionary changes in the Kenyan justice system, to ensure that victims of offences have a place within the contested space of the justice system. No doubt effective implementation of the Act requires monumental financial and personal commitments from government agencies, non-state actors and legal practitioners, but this is a sure way of ensuring that the Kenya’s embodiment of symbol of justice is not a mere symbol, but a reality that secures active and informed participation of all, especially for victims.
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