For quite some time, the criminal justice system turned a blind eye to the Victims of a crime and their role in the criminal proceedings was limited to testifying on behalf of the prosecution.
With inspiration from restorative justice and as guided with Article 50 (9) of the Constitution of Kenya 2010, parliament enacted the Victim Protection Act, 2014 (“the Act”), to protect and compensate victims of a crime. The definition of a Victim in the Act is not only restricted to the Complainant but includes the Complainant’s family.
Pursuant to the said Act, Complainants can now actively, albeit limited, participate in the proceedings as encompassed in Section 9 of the Act. However, the scope and extent of the Victim’s active participation in terms of addressing the Court is not provided for.
Unbeknownst to many, restorative justice has been in existence since time immemorial morphing in and out of focus with time. The concept of restorative justice is rooted biblically as well as in our cultural setting through the decisions of councils of elders. Their decisions often involved the accused taking responsibility, repentance, offering a public apology, compensating the victim, community service or individual service among others.
The objective of restorative justice is to mend the community structure as offenders and victims are likely kith and kin. Its purpose is geared not towards the most severe punishment to the offender but to the restitution of the victim to a position relatively near where they would have been had the offence not taken place. The victim sometimes normally just needs an acceptance of the crime committed and an apology for closure.
The criminal justice system is a grueling process that adds salt to the wounds of victims over a long period of time. It takes a toll on the victims, families and communities involved depending on the nature of the crime. Restorative justice comes in to alleviate this strain by shortening the process and delivering an outcome suitable to all. These outcomes are the Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters which resulted in the publication of the 1st and 2nd Edition Handbook on Restorative Justice Programmes.
Why did the law come in to aid culturally established systems of restorative justice? What is considered culturally wrong or right varies from what is legally wrong or right and the approach and community structure influences the decision of traditional adjudicators to the detriment of victims. The Constitution of Kenya 2010 comes in the application of practices repugnant to justice and morality. To safeguard victims from repugnant decisions the court oversees these processes.
The criminal justice system follows the positivist school of thought that issues are either black or white and never grey. It does not factor the wellbeing of the victim, accused, their relationship, family and community post the criminal justice system process. Restorative justice recognizes that there is life beyond the criminal justice system and that at the end of the day victims, perpetrators and their families are members of a society that they spend majority of their lives with.
The aforementioned rigidity aids in ensuring a fair and just outcome of restorative justice processes, safety and protection of parties especially victims, and where things fall apart, a return to the criminal justice system for trials to follow their due course.
What steps has the Kenyan Criminal Justice System taken towards restorative justice thus far? By virtue of Section 9 and 13 of the Victims Protection Act, the Victims of a crime are allowed to participate in proceedings and adduce evidence, as long as it does not interfere with the Accused’s right to a fair hearing. This is dependent on the discretion of the Court. In some cases, the extent of the Victim’s participation is determined during pretrial for convenience purposes. Additionally, the Complainant’s Counsel can consent with the Prosecution and defense on the issue of cross examination of witnesses.
With this, sprouts the issue of lack of harmonization of procedure with which they approach Court with. Different Courts have different approaches. For instance, in Republic v Joseph Lentrix Waswa, the Complainant’s Counsel successfully sought leave to participate in the proceedings, whilst in the Leonard Maina case, the High Court set the rules on when the victim could participate and limited it to plea bargaining, sentencing and any decision that will affect their rights.
Furthermore, there is also the issue of leave being sought by Counsel watching brief at the commencement of the trial. Is this right is inherent. By virtue of the Constitution encapsulating this right and the Act, this right should automatically confer upon the Complainant and leave should not be sought.
There needs to be uniformity in procedure by Criminal Courts on the scope of the right of participation of Victims in these proceedings. Moreover, the rules should provide on leave being sought by the Complainant for participation, the level of participation in the proceedings and at what time the same should be sought.
Incidental to Restorative justice is the power of plea bargaining is provided for under section 137 of the Criminal Procedure Code of Kenya and the Criminal Procedure (Plea Bargaining) Rules 2018.The Court is not a party to the negotiations. The agreement, however, needs a stamp of approval from the court. Plea bargaining does not apply to offences under the Sexual Offences Act, genocide, war crimes and crimes against humanity. With the appropriate rules in place, and although a complicated process, plea bargaining should be extended to some of the aforementioned offences if the Victims consent to it.
Additionally, criminal proceedings sometimes conclude through settlement between the parties involved. The Complainant opts to withdraw charges on condition the accused returns stolen property or its equivalent in cash. The Court requires victims/complainants to attest that the withdrawal is voluntary and not coerced after whichever restorative justice mechanism is employed.
As discussed beforehand, the purpose of restorative justice is to reinstate and not sever. In the case of Republic versus Mohammed Twaha the Magistrate noted that the complainant/victim and the accused were brothers and suggested that parties seek restorative justice.
In conclusion, Kenya still has milestones to go in terms of restorative justice by employing victim-offender mediation, restorative conferences, circles etc. and moving toward extending it to serious crimes as is gaining momentum internationally. There are several instances where genocide perpetrators have approached their victims to apologize in the informal setting which is ironically, the nature of restorative justice albeit with more protections. Our post-election violence victims could benefit from restorative justice.
However, as we undertake to promote restorative justice, we should take keen note for the harmonization of the procedure, to ensure it is uniform in all the Criminal Courts. This saves precious judicial time and smoothens the process.
LAURENCIA NYANGASI AWINO
 Leviticus 6:2; Numbers 5:6
 Republic versus Alois Kilonzo Cr. 68 of 2019 unreported.