Victims of crime get nod to actively participate in trials

Wednesday, September 9th, 2020 23:32 |
A bench of Supreme Court judges during a past session. Photo/PD/File

The Supreme Court has given the greenlight to victims of crime to actively participate in criminal trials against the perpetrators. 

This means that the family of a victim interested to participate in the trial, can do so through a lawyer of their choice instead of being represented by the State.

A five-judge bench comprising Chief Justice David Maraga, justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndungu and Isaac Lenaola, ruled that victims too have a legitimate interest in the court’s exercise of its jurisdiction.

Passive observer

The judges dismissed an appeal by murder suspect-Joseph Lendrix Waswa who was protesting a decision to allow the victim’s lawyer, to take part in the criminal trial.

The judges noted that the purpose of criminal proceedings is to hear and determine, whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment.

They added: “Thus, the rights of the accused cannot be considered in isolation without regard to those of the victim…The criminal justice system should cultivate a process that inspires the trust of both the victim and the accused.”

“Victim participation should meaningfully contribute to the justice process. It must be noted, however, that this does not mean that the court’s judgment will follow the wishes of the victim,” the judges explained. 

 In the case, the high court permitted the counsel engaged by the victim of the crime to participate in the trial of Waswa.

Waswa was aggrieved by that decision. He filed an appeal but that too  flopped.

Waswa was charged with the murder of a 22 year-old Mombasa university student Mitch Barasa Kibiti on August 30, 2013 in Kimilili sub-location, Bungoma County. 

He allegedly shot the student at a bar in Kimilili town and the case has stalled for six years.

After nine witnesses for the prosecution gave their testimonies, George Marunga, counsel for the family of the deceased, made an oral application to be allowed to take part in the trial.

Trial judge Abida Ali Aroni after hearing the case held that the law has shifted the traditional parameters of a victim in a criminal case and therefore, a victim’s counsel can no longer be considered a passive observer in criminal trials.

She however noted that the participation of the victim’s lawyer cannot be parallel to that of the prosecutor.

Waswa challenged this decision saying the judge introduced a non-existent right, by elevating the position of a counsel holding brief, to status equal to the constitutional office of the Director of public Prosecutions (DPP).

In  Waswa’s  view, the judge in a way attempted to amend the Constitution by concluding that the powers of the DPP are to be exercised collegially with counsel holding brief.

The appeal court in May 2019 dismissed Waswa’s objections.

Aggrieved by that decision, Waswa appealed at the Supreme Court.

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