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Constitution of Kenya Review Commission
By Pravin Bowry, Advocate, Rodney Enane, Advocate, Edwin Bikundo, Legal Assistant
1. ACCUSER (COMPLAINANT) AND HIS RIGHTS
1.1. RIGHT FOR AUDIENCE/REPRESENTATION IN CRIMINAL COURT.
All prosecutions presently commence with an Accuser (or the Complainant) either through the Police, Private Prosecutor or other Quasi-prosecutorial bodies under different Acts of Parliament as in the cases of Labour Department, Immigration, Catering Levy etc. And once the Accuser has had the matter to the prosecutorial arm the law does not give the Accuser a general right of audience. In cases of murder, rape, theft etc, the courts only hear the witnesses relevant to the Complaint and only if the Evidence Act allows audience. Many interested parties - e.g. the parents of the victim of rape have no say, or locus standi.
An accuser/complainant should have a broad-based right of audience and representation through Counsel or otherwise to mitigate against obvious injustices e.g. a complainant must have say in the sentence of the Accused.
Often the Prosecutorial arm are insensitive to the complainants feelings and trauma, often, relevant facts of the complaint are viewed from the back seat.
The right of the accuser/complainant should be at par with that of the Accused so that a level playing field is established.
Criminal Procedure Code and Evidence Act should be amended in line with the Constitutional right of the Accuser to be represented fairly.
1.2. RIGHT TO APPEAL
Presently the Criminal Procedure Code provisions inhibit the right to Appeal of the Accuser. This curbing attitude results in unfairness. If a complainant desires to appeal against say an Acquittal (with or without the Prosecutors blessings) he should be allowed to do so and this will in many a case stop instances of injustice.
1.3. RIGHT TO LEGAL AID.
Complainants should be given legal aid by the State. Serious crimes are often diluted to petty offences with the Accuser not realizing the unfairness of the factual situation e.g. where attempted murder is portrayed as ordinary assault with the Accused getting off lightly.
1.4. RIGHT TO SECRECY
An Accuser should be protected if need arises. Often an Accuser does not report an alleged offence for fear of being exposed to a more powerful criminal or to the community or due to the shame of being involved in what the community considers shameful.
Provisions for Compensation/Restitution through Criminal Courts presently are meagre Section 175 of criminal Procedure Code Cap 75) reads thus: -
"175. (1) whenever a court imposes a fine, or confirms on Appeal, revision or otherwise a sentence of a fine, or a sentence of which a fine forms part, the court may, when passing judgement, order the whole or any part of the fine recovered to be applied: -
a) in defraying expenses properly incurred in the prosecution;
b) In the payment to any person of compensation for loss or injury caused by the offence when substantial compensation is in the opinion of the court recoverable by civil suit.
(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal is presented, before the decision of the appeal.
(3) At the time of awarding compensation in any
subsequent civil suit relating to the same matter, the court shall take into account any sum paid or recovered as compensation under this section".
An Accuser should be compensated realistically when circumstances warrant without exposing him to the trauma and expense of a civil case in a second trial. More often than not, complainants and their witnesses have to pay substantial amount to present their cases without the state reimbursing them.
1.6 WITNESS PROTECTION SCHEME/PROGRAMME
Witnesses to crime are more often than not unwilling to record statements or testify in courts of law due to the lack of guarantees for their personal safety.
A witness protection programme may assist in the detection, investigation prosecution and prevention of organised crime.
Many a witness dare not give evidence due to various factors e.g. threats. Witness protection should be enshrined in the Constitution and witness protection scheme embodied.
1.7 RIGHT TO SCIENTIFIC FORENSIC EVIDENCE
DNA testing though available is still a novelty. Even more mundane technologies such as fingerprinting and chemical analyses are the exception rather than the rule. With the increasing sophistication of crime the law enforcement agencies have a lot of catching up to do. Government agencies should make these facilities available to the complainant and should not be the province only of the police or the Government Chemist.
1.8. MONOPOLY OF POLICE IN INVESTIGATIONS TO BE CURBED.
PRIVATE PROSECUTIONS: Private prosecutions should be treated at par with public prosecutions. Powerful or influential elements will not be able then to take the law for granted. Crimes being acts against the State, it is only fair for the State to incur the costs of private prosecutions.
1.9. POWERS OF A.G. IN PUBLIC INTEREST LITIGATION
Public interest litigation should be conducted at the expense of the State upon receipt of a petition signed by the relevant stakeholders, with the petition merely being qualified by the A.G. as a matter of procedure.
The constitution should promulgate precise rules. Complainants will have this new avenue for expeditious remedies.
1.10. CITIZEN'S ADVISORY BUREAU:
It is submitted that an independent body is incorporated into the Constitution manned by Social Workers and lawyers amongst others to guide aggrieved complainants. It is emphasised that most Kenyans do not have the knowledge know-how or resources to enforce their rights and this is more profound in criminal matters. The Bureau would possibly be a pre-police step and a watchdog on the police action or non-action. Of course the Bureau should have firmly defined powers and duties.
2. ACCUSED AND HIS RIGHTS
2.1. DECENT TREATMENT OF ACCUSED IN POLICE STATIONS. COURTS REMAND PRISONS AND PRISONS
Even when one's liberty is curtailed pursuant to the law, the Bill of Rights is still sacrosanct be it in police or prison custody and must be specifically imposed and upheld with penalties and sanctions for non-
compliance. There is institutionalised degradation of an individual who is accused. Basics (such as meeting a relative or a friend, or food and toilet facilities) become issues when an accused is incarcerated and the colonial mentality of degrading the accused has continued in independent Kenya.
2.2. DEATH PENALTY
There has been an unofficial Moratorium on carrying out the death penalty in Kenya. Though the respite is welcome, the constitutional protection of life should be accorded a more permanent basis in the criminal justice system. Death penalty should be constitutionally declared illegal, as is the trend in other jurisdictions.
2.3. CORPORAL PUNISHMENT
According to the Memorandum of objects and reasons of the Criminal Law Amendment Bill, 2001 "Corporal punishment is now universally considered to be an inhuman and degrading punishment" This should be enshrined in the Constitution.
Extra-judicial confessions are intrinsically untrustworthy; any effective criminal law justice will do well to be without them.
Indeed the Criminal Law (Amendment) Bill 2001 says
"The bulk of complaints of torture made against the law enforcement authorities are related to attempts to obtain confessions from the victims of torture. By repealing these provisions, a major motivation for torture will have been removed".
Outlawing these in the Constitution will go a long way in preventive enforcement of human rights.
2.5. CONJUGAL RIGHTS OF PRISONERS
HIV infection and sodomy in prisons are undesirable. To curb the problem at the root by letting married prisoners consort with their spouses can only help in alleviating these problems. For many offences day prisons should be established allowing the convicted to go back to the family and return the next day. This is in particular for petty offences. Surely a man convicted of causing death by dangerous driving does not need to be rehabilitated in a conventional prison.
2.6. LEGAL AID TO ACCUSED GENERALLY
The sort of legal aid generally required by accused is inexpensive and just needs organisation, not funding purse. Lots of legal professionals and students would be willing to chip in experience and charity.
Giving the right to legal aid constitutional guarantee would help unclog the machinery of justice and promote law and social order in the country. This can be incorporated into the Citizens advisory Bureau mentioned in paragraph 1.10.
2.7. LEGAL AID TO ACCUSED IN CAPITAL CASES
Though in practice there exists the 'pauper brief’ system in capital cases. Robberies with violence cases do not have legal aid.
The state of affairs is unsatisfactory as the funds availed by the Chief Justice are inordinately low and do not attract the most competent personnel.
2.8. RIGHT OF THE ACCUSED TO KNOW THE CASE PRIOR TO DEFENDING:
Statements of witnesses should be given to the accused as of right. Names of witnesses should not be the province of the prosecution.
2.9. RIGHT OF DISCLOSURE
Withholding of evidence and material documents is a normal present day occurrence. The prosecution in Kenya is not obligated to disclose to the Defence favourable evidence in the course of investigations. Right of disclosure akin to the UK Criminal Procedure and Investigations Act 1996 and provisions of the Common Law, which reads thus:
"At Common Law, a duty exists on a prosecutor to make disclosure of information that falls into any one of three categories:
i. Information that is relevant to an issue in the case;
ii. Information that raises or possibly raises a new issue whose existence is not apparent from the evidence the prosecution proposes to use;
iii. Information that holds a real prospect of providing a lead
on material which goes to (i) or (ii) above."
(The above is embodied in the English case of R. v. DPP Ex parte Lee  W.L.R. 1950 D.C.). In Kenya the Constitution should provide for all aspects of disclosure.
2.10. INCORPORATION OF ANTON FILLER INJUNCTIONS IN CRIMINAL MATTERS
This would greatly assist in the investigation of complaints of torture by the Police in its various departments, and thereby curb the inhuman practice. Many frauds and other wrongs and offences are committed in secret by law enforcement agencies. The offenders have papers or things in their possession (e.g. torture instruments/special cells (remember 'Nyayo House' torture dungeons) which many people have talked about) if forewarned these are likely to be disposed.
To prevent this the Constitution should provide for legal recourse. In civil matters this procedure is known as "Anton Piller" order. This constitutional provision will assist in policing the police and others. The mere fear that the Police Station can be "supervised" at the insistence of a citizen will be an important deterrent to the lawbreaker.
3. DRAWBACKS IN THE EXISTING CONSTITUTION
3.1. Stating constitutional principles in the Constitution without stipulating available remedies renders the Constitution a toothless bulldog. Chapter V 'Protection of Fundamental Rights and Freedoms of the Individual'. What are the remedies available if fundamental rights and freedoms are abused?
As an illustration the present constitution says an accused should be brought to court within 24 hours. If he is not what happens? And what are the remedies? The present Constitution is from the remedial point of view a toothless bulldog. It has taken almost 40 years to get first set of rules under Sect. 84. The Rules should be published in a schedule to the Constitution as delegation has historically proved beyond the abilities of our Chief Justices.
Note that the Chief Justices are impotent. No rules have been established under Sec. 65(2), 67(1) and Rules under 84(6) were promulgated only recently.
3.2. REMEDIES DESIRABLE:
The present constitution incorporates fundamental rights (Bill of Rights) but no precise remedial provisions follow nor is there an established procedure for protecting the rights of the citizen whose rights have been abused.
70,71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82 and 83.
Recourse To The High Court And Court Of Appeal Under Section 84
Setting Up A Permanent Constitutional Court and Independent Authority. Provision Of Legal Aid, Sanctions, Penalties and simple Adequate Procedure,
Provision Of Comprehensive And Binding Definitions Of Human Rights.
Has the effect of providing for and authorising the infliction of pre-
independence punishments designed and intended by a colonial administration to "pacify" discontented citizenry.
Repeal of Section 74 subsection (2) and insert a new one providing for and authorising the infliction of punishments of a description conforming to a revamped Penal code and the International Humanitarian Treaties Kenya is signatory to.
Disapplies the entire Bill of Rights save sections 71, 73 and 74 in relation to a person who is a member of a disciplined force raised under any law in force in Kenya
Repeal of Section 86(2) and replacing it with new provision enforcing the whole Bill of Rights.
Disapplies the entire Bill of Rights in relation to a person who is a member of a disciplined force raised otherwise than under any law in force in Kenya and lawfully present in Kenya.
Repeal of Section 86(3) and replacing it with new provision enforcing the whole Bill of Rights.
3.3 LACK OF INDEPENDENCE AND CONTROL OVER THE JUDICIARY. EXECUTIVE
Judicial appointments and that of The Attorney General should be both subject to vetting by Parliament.
Promotions of Judicial officers should be pegged on performance and/or seniority not political whim, arbitrariness or tribal considerations.
3.4 LACK OF ESTABLISHED PROCEDURE TO PURSUE ABUSE OF PROCESS OF COURT IN PROVISIONS OF THE CONSTITUTION
The issue of Jurisdiction should be harmonised in the Constitution. Why should a Magistrate make a finding that there is abuse of process and yet feel that is impossible to acquit an accused because only the High Court has the power. The idea that the subordinate courts have no jurisdiction too apply and interpret the constitution should be done away with in view of the large volume of cases disposed of therein and the fact that they are invariably manned by legally qualified personnel.
4.1. Definition of Torture': - torture is a word used in the Constitution Section 74
" No person shall be subject to torture or to inhuman or degrading punishment or other treatment".
However there is no definition of the word. Whether torture can be defined through International Treaties is a moot point. A clear-cut definition of 'torture' would be appropriate.
4.2. ESTABLISHING A CONSTITUTIONAL COURT
Citizens should have direct access to a Constitutional Court. At present one can hardly originally institute proceedings before a constitutional bench and the methods and procedures are such as expensive and inhibiting as a result of a 'trial within a trial'.
4.3. ESTABLISHING A SUPREME COURT
Second appeals to the Court of Appeal are only allowed on law and not facts. There is need for Supreme Court with a protection of two appeals both on fact and law. Simplified procedures should be established.
4.4. ESTABLISHING THE OFFICE OF AN OMBUDSMAN
The office of an independent Ombudsman to take cognisance of human rights violations would go some way in enforcing human rights without recourse to the legal system's pitfalls of locus standi, bureaucracy and technicalities.
4.5. HARMONIZING OF (COLONIAL?) LAWS AND CHANGES IN THE CRIMINAL PROCEDURE CODE, PENAL CODE, THE EVIDENCE ACT, THE POLICE ACT AND THE PRISONS ACT
The present pertinent Acts in Criminal Justice should be rethought and reworked to comply with International treaties we are signatory to and the aspirations of the Kenya Citizen. Various laws of the country will need to be harmonised with the new constitution.
4.6. RECTIFICATION AND APPLICATION OF HUMAN RIGHTS TREATIES AND THEIR APPLICATION IN INDIGENIOUS CLIMATE
International Treaties should have the force of law in Kenya and procedure for their enactment as published laws should be made.
4.7. CREATING MINISTRY OF JUSTICE AND A SEPARATE PROSECUTION DEPARTMENT/SERVICE
Presently the Attorney General's office is heavily politicised and perceived as anything but impartial in the discharge of its constitutional and statutory duties. Setting up a distinct ministry for Justice with a political head might make the Attorney General much less partisan.
4.8. INQUESTS/COMMISSION OF INQUIRY ACT
An independent Coroner's office should be set up to undertake inquests. Commission of Inquiry Act and Inquiry should not be dependent on the whims of the executive but should enjoy constitutional protection.
4.9. REMEDYING OF JUDICIAL DELAY IN CRIMINAL MATTERS
Courts to be equipped with recording mechanism as a constitutional requirement however expensive at least in the High Court cost less than the new Mercedes of the Judges.
4.10. 12 HOUR MOBILE COURTS AT POLICE STATIONS, ROAD SIDES AND PRISONS
To assist citizen, to minimise delay and as a way forward new concepts must be provided for. The revival of the justice of the peace concept where legally trained personnel can be issued commissions to summarily punish miscreants at the time and place of the crime for example Summary detention by the roadside for an hour or so as punishment for traffic violations can be a deterrent.
4.11. APPOINTMENT AND PROMOTION OF JUDGES
The conditions upon which the Judicial Service commission selects judges for appointment should be more stringent by for example raising the minimum period of practice required to at least fifteen years.
All judges present and future should be appointed (and reappointed) by the parliament akin to the American practice.
4.12. UNIFICATION OF THE POLICE FORCE.
There is no need for A.P's. The present practice where there are several autonomous police units encourages irresponsibility of its members because leadership is diffused making accountability almost responsible. The administration police force ought to be disbanded and incorporated into one national police service with a unified chain of command.
4.13. PRISON REFORMS
Prison conditions are in dire need of improvement; some ideas include provision of qualified medical personnel, better hygiene, and mandatory borehole, harvesting of water. Facilities for patients with special needs such as HIV patients and pregnant women should be adequately catered for.
Provision for both subordinate courts and superior courts of record to sit in sessions at the prisons for both security reasons in prevention of escapes in transit and for the judicial officers to experience prison conditions first hand.
Prison services must have their own Health Department and dependency on Ministry of Health must be stopped.
Prisoners should have the right of independent of medical treatment if need arises.
Prisons should be "opened up by Constitutional provisions and prisoners allowed to undertake nation building activities e.g. road construction and filling up pot holes.
4.14. PREROGATIVE OF MERCY
This should be exercised not by the President but by a three-member bench Advisory Board and set principles should be applicable to all citizens.
415. REMEDYING INJUSTICE
INSTANCES IN Kenya and other countries exist where after years new evidence exonerates convicted criminals (remember IRA trials in Ireland?).
A constitutional method to remedy the ills of the Judiciary, Police or even perjury needs to be provided for.