Monday, August 25, 2008

Justice under the Cosh?

As reported in the Standard on Wednesday last week, Chief Justice Evan Gicheru is proposing to second senior judges as resource persons for training prosecutors and investigators, blaming the “apparent inability of the office of the Director of Public Prosecutions [Keriako Tobiko] and the Police to properly investigate and prosecute criminal cases” for the failure to secure convictions. Coming from the head of the institution that is most responsible for ensuring the protection of our common rights, this is a shocking turn. Pretty soon, any defendant may find himself facing a prosecutor trained by the very judge overseeing his case. This would raise uncomfortable questions regarding how fair such proceedings would be. It is as if classroom teachers were allowed to grade the national exams of their students. Would the judges be grading their student’s work or their own teaching abilities?

The offer also raises questions regarding the impartiality of the judiciary in criminal proceedings. What interest does the institution have in securing more convictions? Is it not supposed to be a disinterested party in one’s dispute with the state? While it is obvious that our prosecutors and investigators are in dire need of better training, is the Judiciary the appropriate organ to do this? Wouldn’t our judges be better employed sorting out the ridiculous backlog of cases and leave the training of prosecutors to someone else?

What about defendant’s rights? While it is true that the offices of the DPP and that of his boss, Attorney-General Amos Wako, are renowned for incompetence, the fact is that for the average Kenyan, the court is a supremely intimidating environment. No public legal assistance is provided and few are able to afford counsel. Consequently, most defendants are ignorant of their rights. Many simply plead guilty to avoid wasting years of their lives remanded in custody while prosecutors seek adjournment after adjournment citing incomplete investigations (why they should be allowed to charge you and deprive you of your liberty before collecting the necessary evidence and witnesses is beyond me). I, for one, am always depressed by the sight of tens of defendants being charged at the same time for all manner of unrelated misdemeanours. Surely, this militates against any attempt to establish the particular facts of their individual cases, doesn’t it?

I’m all for a better prosecutorial service. But this hardly seems to be the best way to go about it.

And while we are still on the subject of our Judiciary, I was rather surprised at the announcement that we would be seconding judges to the Gambia and assisting with the training of those in Southern Sudan. I thought we had more pressing problems of our own. Why second judges to another country when there is a shortage of them right here?

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