By Busalile Jack Mwimali, PhD,

(Advocate of the High Court of Kenya and Dean, JKUAT School of Law)

A keen assessment of the broad spectre of protection offered as human right invariably lead to the conclusion that these rights that are avowedly universal, indivisible and inalienable do often render themselves susceptible to internal conflict that may cause practical and conceptual problems in their application in the criminal justice system. This has indeed fed into the recent legal debates in Kenya, not least in respect to protection of individuals’ right to fair trial in the criminal justice processes in matters that are of public interest.

These disputations have presented themselves in the recent national discourses on the fight against corruption where powerful individuals in the country’s justice system have been involved. The arrest and arraignment of the Deputy Chief Justice on Mwilu at the Anti-Corruption Court presided over by a Chief Magistrate on charges of abuse of office, tax evasion and bribery and the subsequent suspension the criminal charges on her application to the High Court led to murmurs in some quarters that she got a more favourable treatment on account of her senior position in the Judiciary and the argument that the fair trial protection accorded to her and other prominent individuals in the society are more than those given to the regular suspects going through the criminal process.

Adding to the public ire, were the events following the arrest of Prof. Ojienda, a prominent lawyer and member of the Judicial Service Commission (JSC) on a Friday evening reportedly for irregularities in the briefs he had undertaken on behalf of Mumias Sugar Company.

While advocates were up in arms reading malice and bad faith in the prosecution’s move which would see him spend the weekend in police custody, the broad public view was that the fight against corruption was now picking up steam and was catching up with the high and mighty in the society. The overall view was that the lawyers were only seeking to cushion themselves against legal accountability and their fury was geared towards the continual entrenchment of impunity by members of the learned profession.

More recently, the debate has moved to whether suspected terrorist should also be accorded the full protection offered to accused persons by the Kenyan Constitution and international law. The poignancy was captured in social media after the January 15, 2019 attack carried out at Riverside Drive in Westland, Nairobi, the responsibility for which was claimed by the Al Shabab terror organisation operating from Somalia but with its tentacles in Kenya.

More specifically, the question was whether such individuals should be captured and taken through the criminal justice system where they would entitled to bail on the presumption of innocence and to other protective provisions on fair trial, or whether they should just be killed. It was even argued that as soon as people take to illegally bearing arms, they lose their right to life let alone fair trial.

Indeed, at the core of fair trial are several distinct legal norms and values that are aimed at protecting the accused. These include the requirements for a fair hearing, carried out within a reasonable time, by independent and impartial courts or tribunals among other specific values like the presumption of innocence, the right of admission to bail, the right of the accused to be supplied with all exculpatory evidence etc.

Although the Constitution of Kenya does make the right to fair trial non-derogable, it does not mean that the underlying values within the particular norms constituting the right are to be exercised without limitation. Indeed, in operationalising human rights in general, some values may collide with others and would hence require the adjudicator to balance the extent to which the each would be applied.

Three types of conflicts are observable in this respect. First, there are case where rights afforded to individuals are seemingly in conflict with the welfare of the public, and secondly, cases arise where the right of one group of individuals may collide with those of others. A third scenario arises where the various rights of the same individual seem to be conflicting.

These conflicts are notable in the operationalisation and application of the right to fair trial. For example, the presumption of innocence may seem to be at variance with the public interest to prevent crime and ensure an orderly society. It may also sometimes lead to the perception that the accused persons always stand at a better position than the victim of crimes.

This must, however, be viewed against the backdrop of it emergence as a common law norm in medieval England where trial by ordeal were found to have been quite onerous to the accused. Under the ancient judicial practice, the guilt or innocence of the accused was determined by subjecting them to painful, or at least unpleasant, usually dangerous experiences. The test was sometime one of life or death, and the proof of innocence was survival.

As the medieval society began to be repelled by these practices, the need to accord individuals a fair trial was deemed to be necessary to avoid the patent injustices in the system. Hence at common law, fair hearing, in the context of criminal justice, required that the accused should be considered to be innocent and be accorded unhindered access to all facilities that would allow them to undertake an effective defence to affirm their innocence, if they indeed were. Thus, for example, the prosecution could not be allowed to hide any information that would weaken their case from the accused.

The Kenyan State has itself had a history of repression where the criminal justice system was employed to victimise those perceived to be against the government of the time. A case in point is the Mwakenya trials in the 80s, a poignant reminder of the need for a robust constitutional protection of rights of the accused.

There has been a mistaken view that the presumption of innocence is not universal. Some have erroneously argued that, unlike the Kenyan adversarial system that derives from the common law tradition which lays great emphasis on it, the inquisitorial procedures in the civil law system do not accord suspects this presumption. This mistaken view may have arisen from the fact that the civil law systems largely employ the inclusionary rule of evidence where all evidenced touching upon an offence under trial are deemed to be relevant and thus admissible in a trial. The common law system, on the other hand, generally adopts the exclusionary rule of evidence and would sometime refuse to admit some evidence which, though relevant, are deemed to have been defectively obtained to the detriment of the accused.

The argument that civil law systems do not accord suspects the presumption of innocence is rebutted by the international legal obligations binding upon all States under treaties on civil and political rights. The Universal Declaration of Human Rights, for example, makes provisions to the effect that “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” This has been codified in the International Covenant on Civil and Political Rights among other international treaties binding on all States whether they are from the common law or civil law traditions.

Moreover, inasmuch as these systems take divergent routes, they both aim at a similar outcome; justice. Common law takes the position that the accused is better placed to protect his interest as he would know exactly where the shoe pinches. He can, however, only do so if he is protected against the might of the State that has the necessary resources to investigate and counter the defences in favour of the accused.

In respect of the conflicts in human rights values applicable to the same individual, it may often be that when people are allowed unlimited facilitation to make their defence, timely trials would be impossible. It is, therefore, left to the presiding judicial officer to regulate the proceedings to ensure that the accused does not veer off to unnecessary pleadings that would waste time without adding value to the case. This cannot be said to derogate from the right of the accused to a fair trial.

Against this backdrop, it is clearly impossible for the right to fair trial to operate without some restrictions. A holistic approach to the problem of the extent to which the rights must be enforced must, therefore, be sought in order to create a balance over the conflicting legal norms to ensure that the international and constitutional protection of human right are not used to circumvent the criminal justice process either by the State or by the accused.

As the trial process is within the realm of the Judiciary, judicial officers should, therefore, bear the responsibility of determining the extent to which they will enforce the colliding values of human rights with great awareness of the role it has in the advancement of the rule of law while adjudicating disputes. If the Judiciary plays its perfect role, it should ideally operationalise the rights within the spirit of the Constitution and other binding legal instruments. But this can only be in cases where judicial officials bear their responsibility irreproachably. Like Caesar’s wife, the Judiciary must be above suspicion.