By Martin Nyakundi O’Barimo
In my work as a legal researcher, I have studied the various gaps existing in our prosecution process that lead to miscarriage of justice for the victims, the accused persons and our society that are inherent in the Constitution(2010), the Evidence Act ( Cap 80), the Criminal Procedure Code ( Cap 75), the Sexual Offenses Act (No 3 of 2006), the Children’s Act (Cap 141), the National Police Service Act (No 11A of 2011), the Penal Code (Cap 63), the National Prosecution Policy, the Bail and Bond Policy Guidelines, the Guidelines for Active Case Management of Criminal Cases in Magistrate Courts and High Courts of Kenya, among others, in our country Kenya.
Injustice in the prosecution process due to maladministration, delay, ineptitude, inefficiency, ineffectiveness, inaction or unresponsiveness should be of great concern to all of us as it affects the poor, the weak and powerless Kenyans whichever side they stand either as the victims, complainants or the accused and also, weakens the trust of the people in the court system.
A day does not pass without hearing members of the public complain on radio or television that they did not get justice in the court process that involved them either as complainants or as the accused persons. Some will say that the court has kept on adjourning their cases without any indication as to when they may be concluded thus dragging them for years.
Others have said that the prosecutors abandoned them when they were subjected to cross examination by the defense making them appear more of accused persons than witnesses or complainants. The prosecution has not been left behind in pointing fingers at the courts for throwing out their cases on the grounds of “lack of sufficient evidence to convict”. Conversely, various judges and magistrates have expressed frustration concerning the poor presentation of the cases by the prosecution and poor investigation by investigating officers. It is a cacophony of blame games and figure juggling.
Our prosecution processes have very many gaps and holes that one wonders whether the courts are “corridors of justice” as they like to be referred to as or are they “corridors of injustice” as many people have baptized them.
To begin with, the prosecution wins very few cases in Court which Patrick Kiage (now an appeal court judge) in his book Essentials of Criminal Procedure in Kenya blames on: poor case management by the prosecution including complete failure to know the circumstances of the accused, the witnesses and time management entirely; insufficient evidence or wrong evidence not in tandem with the laws of evidence ;corruption in which 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; and, incompetence of the prosecution officer in terms of confidence, command of court language, courage to face known defense counsel or/and understanding of the applicable laws.
The record of the success of prosecution is quite dismal. Serious challenges also exist in the identification and registration of the accused persons during trial, on one hand, and the identification and registration of witnesses on the other where the prosecution and the investigating officers have ignored the use of scientific methods of investigation that are objective, empirical, efficient and reliable.
Corridors of Injustice shall discuss these aspects in details every Wednesday, and giving applicable recommendations to each of them, in order to sensitiee all the stakeholders and our society in order to promote justice and rekindle trust in our criminal justice system.