Kenya's apex court confirms 'novel' rights of victim's counsel

18 September 2020 · Carmel Rickard

A man accused of murdering a student has helped make new law. That's because of the significant judgment issued by Kenya's Supreme Court after he tried to stop counsel for the deceased student becoming involved in the trial. Joseph Waswa, charged with killing Mitch Kibiti Barasa, said that his fair trial rights were infringed when the trial court allowed counsel for Barasa to play a role in the matter. But the Supreme Court has now put him right. The country's highest court has ruled that the Victim Protection Act, the constitution and international law all support the right of victims to be represented by counsel in court - and that counsel may even be allowed to ask questions of the witnesses.

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High-flying Kenya socialite Joseph Waswa, 33, is facing charges of widespread fraud and corruption. But it is his murder trial that will ensure his name lives on in the law reports.

During a hearing of the case in 2017, counsel for the student that Waswa is alleged to have killed, Mitch Kibiti Barasa, cited the constitution and Kenya’s Victim Protection Act (VPA), and asked the court for leave to ‘actively participate in the proceedings’.

The trial judge said that ‘the law has shifted the traditional parameters of a victim in a criminal case’ and for that reason, counsel for a victim ‘can no longer be considered a passive observer in criminal proceedings.’ She also cautioned, though, that this participation ‘cannot be active and parallel to that of the prosecutor’.

Waswa appealed against this finding, but the Court of Appeal agreed with the high court, saying that the intention of the constitution was that the rights of an accused person to a fair trial should be ‘balanced’ with the legal rights of the victim of the offence as contained in the VPA. A victim of an offence or that person’s legal representative ‘may exercise the powers of the court under (the Criminal Procedure Code) with the permission and directions of the trial court’. Further, this was not incompatible with the fair trial rights of an accused person. Nor did it infringe the prosecutorial powers of the DPP.

Essence

When the matter came to the Supreme Court for further consideration of the dispute, the judges said the essence of the problem was whether ‘a victim can actively participate in a criminal trial without prejudicing the accused person’s right to a fair hearing and without interfering with the prosecution’s prosecutorial powers.’

Waswa’s legal team said that the court of appeal’s decision had the effect of elevating the victim’s legal counsel into ‘a secondary prosecutor’ in the matter, and that this was unconstitutional.

However, the supreme court commented that Kenya’s ‘very progressive constitution’ had captured and addressed such concerns. The criminal trial process was a contest between the state and the accused, so that the ‘traditional role of victims’ was often seen as being limited to ‘that of a witness to the prosecution.’ But the Constitution and the VPA ‘without doubt’ ensured ‘that a victim too, has the right to participate in criminal proceedings.’

Novel trend

‘The participation of victims in criminal trial proceedings, though a novel trend in our laws, is in accord with international developments that have embraced the place of victims in the trial process.’

The developing new view on the subject was in line with the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.

Under that Charter, the ‘views and concerns of victims’ could be ‘presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused’. The Rome Statute had similar provisions and the International Criminal Court thus allowed the ‘views and concerns’ of victims to be presented and considered at appropriate stages of a trial, if considered by the court not to be prejudicial to or inconsistent with the rights of the accused.

Fairness

Following the lead of the ICC, the Canadian Victim Bill of Rights Act and legislation in other jurisdictions, the court affirmed that victims have rights in Kenya’s criminal justice system. The country’s constitution and its VPA aimed to ensure the fairness of justice procedures for both the victim and the accused.

In view of this finding, the judges said they did not see how the ‘participatory rights of the victim’ violated the fair trial rights of the accused. They stressed, however, that the DPP had to retain control and supervision of the trial ‘at all times’, while the trial judge had responsibility to ‘protect the rights of all parties involved’.

‘The rights of the accused should be secured and fulfilled. So too the public interest. The rights of victims, properly understood, do not undermine those of the accused or the public interest. The true interrelationship of the three is complementary.’ For the supreme court judges this meant they ‘fail to see’ how the participatory rights of the victims violate the fair trial rights of an accused.

Trial

If a victim or a victim’s representative applied to participate in a trial, it was the duty of the trial court to work out whether and how that could be done.

The judges said they were ‘(c)onscious that this is a novel area of law for our criminal justice system’ and so, as the court of final judicial authority, they spelled out principles that should guide a court in future. These included that the judge should be satisfied that granting the victim participatory rights would not cause ‘undue delay’ in the trial. While the court should consider the victim’s views, there was no obligation for a judge to ‘follow the victim’s preference of punishment’.

One principle that might come as a surprise to readers is that trial judges may allow the victim or the victim’s legal team ‘to pose questions’ to a testifying witness that have not (already) been posed by the prosecutor.

The judges put considerable stress on not slowing down trials and said the six-year delay in this case – to allow for the appeals on the issue of permitting victim representation – ‘defeats the intention’ of the constitution. They thus ordered that the original murder trial be heard and determined as a priority.

Carmel Rickard

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