Joseph Waswa v Republic 2020

Citation

Joseph Lendrix Waswa v Republic (Petition 23 of 2019) [2020] KESC 23 (KLR) Decided at the Supreme Court of Kenya on 4^th September 2020

Introduction

For a long time, the adversarial criminal trial has historically shrouded victims in the shadows of the courtroom. The case of Waswa v Republic ruptures this entrenched tradition by repositioning the victim from a peripheral observer to a recognized participant in criminal proceedings.

Facts

The matter before the Supreme Court arose as a petition by Joseph Waswa against the Republic, represented by the Director of Public Prosecution. The appellant’s dissatisfaction stemmed from the rulings by the High Court and the Court of Appeal. Each court affirmed the right of the advocate’s victims to participate in criminal proceedings actively. The background of the case was that the appellant stood charged with the offense of murder contrary to sections 203 and 204 of the Penal Code and was subjected to trial before the High Court. After nine witnesses had testified, the counsel for the deceased made an oral application seeking leave to participate in the proceedings.

The learned High Court judge observed that the law had evolved beyond its traditional parameters in which victims were considered passive observers in criminal proceedings. When granting the application, the judge carefully affirmed that the victim’s participation could not be construed as parallel or equivalent to the prosecutorial function. Aggrieved, the appellant preferred an appeal to the  Court of Appeal, contending that the trial court had conjured a non – existent right and elevated the position of a counsel watching brief to the status equivalent to that of the Director of Public Prosecutions (DPP). However, the appellate court independently upheld the lower court’s position, recognizing that victims of an offence, through their advocate or representative, could exercise the participatory rights permitted by the court without prejudicing the accused’s right to a fair trial or encroaching on the prosecutorial powers of the DPP.

Dissatisfied, the appellant filed an appeal before the apex court, raising six grounds which the court ultimately entertained.

Legal Issues Arising

The Supreme Court was tasked with resolving two cardinal questions:

1. Whether the right of a victim to actively participate in criminal proceedings as envisaged under the Constitution and Victim Protection Act is reconcilable with the accused’s right to a fair trial and the DPP’s exclusive prosecutorial mandate.
2. Whether, upon the rising of a constitutional question within an ongoing criminal trial, a party could pursue interlocutory appeals to the detriment of the accused’s right to a fair and expeditious trial.

Arguments Presented

Appellant’s submissions

The appellant contended that the lower courts’ interpretation of article 50(1), (2), and (9) of the Constitution, in tandem with the Victim Protection Act, yielded absurd results that presupposed that the victim’s right was elevated above those of the accused person. It was his averment that the rights of the accused encapsulated under article 50(1) of the Constitution could not be limited to accommodate victims’ interests. The appellant relied on the provisions of article 2(4) of the Constitution and on Attorney General of Gambia v Momodou Jobe,[1] to urge the court to interpret the provision of article 50 in a manner that reconciles the right of the accused with those of the victims. It was the appellant’s position that the court ought to affirm the right of an accused to a fair trial, as it does the least damage to the constitution.

He posited that upholding the High Court’s decision undermined the presumption of innocence until proven guilty and qualified the victim as a secondary prosecutor. The appellant’s case was that section 150 of the Criminal Procedure Code imposed no disclosure obligation on victims, rendering such participation prejudicial to the accused, as the victim would bring new evidence, leaving the accused with less time to review and prepare a defence accordingly.

The appellant conclusively maintained that the Court of Appeal erred in finding that the victim’s participation did not in any way interfere with the DPP’S powers under article 157 of the Constitution.

Respondent’s submissions

The DPP applauded the interpretation and application of the constitutional and statutory provisions by the lower courts in affirming that the victim’s right to a fair trial was in accordance with article 259 of the Constitution. In support of the Court of Appeal decision, the respondent maintained that the origin and recognition of the victim’s right to a fair hearing was traced from the United Nations General Assembly Resolution and the Supreme Court of India’s decision in Mallikarjun Kodagali (dead), represented through Legal Representation v State of Karnataka & others[2] where the court recognized victims’ rights during criminal proceedings.

Counsel contended that the victim’s rights were not novel as they had been underpinned in the Constitution, section 137 of the Criminal Procedure Code, and the Victim Protection Act, refuting the allegations of the appellant. The respondent further opined that the court’s powers under section 150 of the Criminal Procedure Code, coupled with section 9(2) (b) of the Victim Protection Act, allowed the court to administer justice and ensure no party suffers prejudice in the proceedings, and in no way in conflict with article 157 of the Constitution.

Victim’s submissions

The victim’s counsel opposed the appeal. It was submitted that the appellant had failed to demonstrate how his rights would be prejudiced by the participation of the victim, who is equally entitled to a bundle of rights and fundamental freedoms.

Court’s Reasoning and Analysis

The court analyzed the cardinal issues on two prongs:

Addressing the first issue, the court acknowledged that the appellant’s apprehension stemmed from the state’s control over the investigation, prosecution, and punishment of crime in the public interest. Nevertheless, the court astutely observed that the preoccupation in balancing prosecutorial powers against the accused’s rights had eclipsed the victim’s rights. The court anchored its reasoning under article 50(9), which mandates Parliament to enact laws protecting the rights and welfare of victims. The court noted that, through this constitutional imperative, the Victim Protection Act (VPA)[3] was enacted. The court established in (para 51) that while the adversarial criminal trial is commonly between the state and the accused, the victim is deemed as a witness. Backed by the Constitution and VPA, a victim still has the right to participate in a criminal trial.

The court appraised international frameworks embracing the place of victims in the trial process. It drew from the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,[4] whose provisions guarantee the victim’s rights to be treated with dignity and expeditious redress. Reliance was equally placed on the Rome Statute, which permits victims’ views to be presented as long as they are not inconsistent with the accused’s rights and an impartial trial.[5] The court keenly examined how ICC had operationalized this and noted it permitted victims to make opening and closing statements, attend and participate in the hearing, file written and oral submissions, introduce evidence, and challenge admissibility with the leave of the court, as well as question witnesses and the accused under strict judicial control.[6]

Addressing the secondary prosecutor argued by the appellant, the court drew comparison from Germany’s Code of Criminal Procedure that granted victims the right to participate in trial independently from the public prosecutor via the Private Accessory Prosecution. The court underlined the necessity of empowering victims as parties with valid and distinct interests separate from those of the prosecutor (para 65). Focusing on the European Convention on the right of the accused on trial and the need to establish a fair trial in totality, the court acknowledged that the right of the accused cannot be enjoyed in isolation and failed to see how victim participation violated those rights.

On the second issue, the court acknowledged the need for expeditious trial as underpinned in article 50(2) (e) of the Constitution. The contention was the reason why the Criminal Procedure failed to envisage the situation for an accused to make an interlocutory appeal from an interlocutory ruling made by the trial court. It was found that the omission was deliberate and not a lacuna in law, in that if the parties were allowed to appeal on an interlocutory ruling, then the parties may use the appeal process to frustrate the hearing and conclusion of the case.

Judgement And Ratio Decidendi

The appeal was dismissed on both issues, affirming that the victim’s participation in a criminal trial is constitutionally sanctioned and reconcilable with the accused’s right to a fair trial and the DPP’s prosecutorial mandate. On the second issue, the court viewed the six -year interlocutory delay as a constitutional ordering that the murder trial be heard and determined as a matter of priority.

The Court held that the victim’s right to participate in a criminal trial is a fundamental right under article 50(9) and section 9(2) of the Victim Protection Act. The interrelationship between safeguarding the rights of the accused, maintaining the objectivity of prosecution, and maintaining the victim’s interest was found to be complementary, with each right reinforcing the other within the constitutional ambit.

Critical Analysis

The case stands as a constitutional landmark in the criminal justice system, recognizing the Supreme Court’s binding departure from the tradition that relegated victims to mere passive witnesses. Remarkably, the Supreme Court issued guidelines to govern future applications on the victim’s participation in. The guidelines stipulated that only a direct victim or their representative may make an application; each application must be analyzed on an individual basis; participation must neither occasion undue delay nor prejudice the accused’s rights; the victim’s presentation remained strictly confined to their views and concerns. Notably, the victim may pose questions to a witness or expert giving evidence not addressed by the prosecutor. The court emphasized that the prosecutorial duties remain solely with the DPP, and while victims’ interests warrant acknowledgment, they neither equate with public interests nor bind the court in determination.

Nevertheless, the judgment revealed a lacuna in that victims are accorded wide discretion in cross-examination, placing trial courts in a plight of being unable to anticipate concerns a victim’s advocate may raise if granted audience. Similarly, the court is unable to foresee the questions a victim intends to pose to the witnesses, rendering effective regulation considerably difficult. This concern was, however, addressed in Republic v Hassan, where the High Court opined that the application of the victim’s participation ought to be laid out during the pre-trial conference in line with the accused’s right to prepare an adequate defence. Only when new evidence was introduced in the trial that would be prejudicial to the victim, then the victim can apply to question the witness at the trial stage (para 31). The court relied on the ICC case in Prosecutor v Bosco Ntaganda,[7] where it prescribed that a legal representative intending to question a witness must file a request within four days, identifying specific areas of inquiry, and if granted, they must confine themselves thereto without imposing leading questions. It also drew from Prosecutor v Jean Pierre Gombo,[8] where the court held that participation must be preceded by an application detailing the nature of the participation, the evidence to be adduced, or the questions to be posed.

The court cautioned that to allow a victim to pose questions that would catch everyone by surprise would be detrimental to the right to a fair trial. Flowing from this, the court prescribed guidelines that a victim must make an application before or during the pre-trial conference disclosing the desire to examine a witness, the application must disclose the specific areas of pursuit, and the relevance of the intended questions. If granted audience, the questions must be shared with all parties before examination, with counsel confining themselves to the approved scope. Waswa v Republic is a landmark case whose robust guidelines reposition the victim within Kenya’s criminal justice system. It is indisputably a decision that speaks truth to the transformative promise of the Kenyan constitution.

Conclusion

This case reshapes the victims’ rights within Kenya’s criminal jurisprudence. By recognizing the victim’s participation as an integral part of a criminal trial under article 50(9 ) and section 9(2) of the Victim Protection Act, the Supreme Court established an enduring foundation for the complementary coexistence of the rights of the accused, prosecutor, and victim in pursuit of a fair trial.

Bibliography

International Instruments

Rome Statute

European Convention on Human Rights

United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power

National Instruments

Constitution of Kenya 2010

Criminal Procedure Code (1958)

Victim Protection Act 2014

Case law

Attorney General of Gambia v Momodou Jobe (1984)

Mallikarjun Kodagali (dead) represented through Legal Representation v State of Karnataka & others, AIR SCT (2019)

Prosecutor v Jean Pierre Gombo (ICC 01/05- 01/08- 424) (2009)

Prosecutor v Bosco Ntaganda (ICC 01/04–02/06 (2021)

Republic v Hassan [2024] KEHC (KLR)

[1] [1984] AC 689 3 WLR 174 (PC)

[2]  Criminal Appeal no 1281-82 of 2018 [2019] 2 SCC 752

[3] Victim Protection Act of 2014 cap 79A of the Laws of Kenya

[4] United Nations (1985) Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (Resolution 40/34) clause 4-6

[5] art 68(3) of the Rome Statute (1998)

[6] rule 89(1) of the ICC Rules of Procedure and Evidence (2009)

[7] ICC 01/05- 01/08- 424 (2009)

[8] ICC 01/04- 02/06 (2021)