In criminal cases,the victim is usually represented by a prosecutor hired by the government while the accused is represented either by a private lawyer or a government appointed one if he cannot afford one.That is done as a crime is assumed to be committed against the society, therefore, the state's interest is what is considered to have been harmed.
It was therefore typically unheard of for people to seek legal counsel from privately hired lawyers in cases in criminal proceedings.
Facts
That however changed when the family of Mitch Barasa ,a student who has been killed by a man called Joseph Waswa asked the judge for permission for their legal counsel to take part in the casr.During a hearing of the case in 2017, counsel for the family of Mitch Barasa cited the constitution and Kenya’s Victim Protection Act and asked the court for leave to actively participate in the proceedings.
The trial judge said that the law has shifted from the traditional parameters of a victim in a criminal case and for that reason counsel for a victim can participate but only passively. She cautioned that the participation could not be active and contrary to that of the prosecutor.
court of appeal decision
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. They said that a victim of an offence may exercise the powers of the court under the Criminal Procedure Code with the permission and directions of the trial judge. They said that seeking legal counsel was not incompatible with the fair trial rights of an accused person and it did notinfringe the prosecutorial powers of the DPP.
Supreme court findings
When the matter came before the Supreme Court,the judges said the major issue in the case 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 argued that the court of appeal’s decision had the effect of elevating the victim’s legal counsel into ‘a secondary prosecutor’ and that this was unconstitutional.They also said it interfered with the DPP,s constitutional rights.
However, the supreme court justices disagreed with that view.
They said that for a long time,the criminal trial process was a contest between the state and the accused and so that the traditional role of victims was often seen as being limited to that of a witness to the prosecution.
They however said the Constitution had ensured that a victim too, has the right to participate in criminal proceedings.
They said that the rights of the accused cannot be considered in isolation without regard to those of the victim.
That makes sense as criminal justice system should cultivate a process that inspires the trust of 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 however said that the DPP had to retain control and supervision of the trial at all times.
They also said that the trial judge had the responsibility to protect the rights of all parties involved as the rights of victims were not supposed to undermine those of the accused or that of the public interest.
They said that if a victim or a victim’s representative applied to participate in a trial, it was the duty of the trial judge to work out whether and how that could be done.
They went on to not only find that the legal counsel of a victim can participate but they went on further to say that they can question witnesses on the stand on matters the prosecution failed to question them on which is something that was unprecedented in the judicial system in Kenya.
Conclusion
In my opinion,l feel that that decision was a great decision by the apex court because for a very long time,victims have had an insignificant role in cases only being used as witnesses which is unfair considering they,re the ones who suffered loss not the state.
It also goes a long way in ensuring that the interests of the victim are represented as the prosecutor does not always represent the interests of victim as his first priority is to represent the interests of the government and the office of the DPP.
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