Page 41 - Msingi Afrika Magazine Issue 7

FEATURES

riminal law in Kenya is one who had not. can guess, was a total break-
guided by the Criminal At the end of the day, it seems down in the criminal justice sys-
Procedure Act, which ba- as though the outcome of the tem.
sically gives directions on trial depended so much more
Chow a criminal trial should on the lawyer than on any of Unfortunately no one wanted
be conducted. We also have the the other participants in the tri- to admit that the system was in
Penal Code, which contains the al. It's unfortunate that the police a total mess. You would have
nature of offenses and the pen- were either not well-equipped or thought that someone would
alties to be meted out to offend- trained in those days and so the address it, however it appeared
ers. level of investigative work was as though those who were agi-
wanting. The prosecutors, who tating for change were very few,
In my early years of practice as a were then police officers, were until the quest for a new con-
lawyer, l found criminal law quite in most cases not very conver- stitution checked in. The quest
intriguing. It's interesting to note sant with some provisions of the for the new constitution was
that criminal law practice has law. They only relied on their then given a new lease of life
evolved over the years. I recall witnesses, which is rarely suffi- by the coming in of the former
very well, while l was still under- cient to procure a conviction. As president Kibaki's government.
going my internship, l was under a matter of fact, there were so There were a few agents of
the tutelage of a criminal lawyer many acquittals in those days. change within government. One
for some time. The only tools of who stood out was the then Vice
trade that we used to carry then Things took a different dimen- President Moody Awori who ini-
while attending a criminal trial sion after a few changes in the tiated and sustained significant
were a file, a writing pad and a law were made. This basically changes in the justice system
pen. The prosecutors were po- sought to address the mischief through the remand and prisons
lice officers who had undergone behind the non-disclosure of department, by introducing new
prosecutorial training. In those witnesses and evidence before programs that improved the way
days, the police never used to trial. The prosecution was now accused persons were handled.
share the witness statements required by law to provide the
with the defense attorneys, un- accused persons and/or their Kenyans thereafter ushered in
like now as changes in the law advocates with witness state- a new era with the coming in of
have made it mandatory for ments and all the evidence that the new constitution. This en-
them to do so. This made the tri- they intended to rely on before sured that rights and liberties of
al more intriguing, as it encour- trial. Of course it wasn't a walk accused persons were promot-
aged trial by ambush. Criminal in the park. Some police officers ed and protected by the state
lawyers were very smart fellows and prosecutors tried their level and state agencies. The require-
then, as you had to be prepared best not to comply with these ment for accused persons to be
to handle any crisis on your feet. new provisions of the law. It is represented by a legal counsel
Remember, the witness could sad to point out that the people of their choice was enshrined in
take the witness stand and start who suffered most because of the constitution. The provisions
testifying of things you had no the way trials were handled then for an accused person to be pre-
prior knowledge of. You had to were accused persons in cus- sented before a competent court
be ready to cross examine them tody. In most cases they could within twenty-four hours of his or
on matters actually not within not access the witnesses’ state- her arrest were also enshrined
your knowledge prior to the trial, ments and the evidence before in the constitution. This had the
but now coming to your knowl- trial. Some judicial officers were effect of outlawing the practice
edge during trial. It was there- not kind enough to ensure com- that was prevalent, of detention
fore incumbent upon the de- pliance by the prosecution. Tri- without trial, and the misuse by
fense lawyer to ensure that they als at times proceeded, to the some member of the public, or
obtained as much information disadvantage of the accused the police to settle scores by
as possible from his or her client persons. The system worked having their enemies or anyone
before trial. This is what made against them. Many were con- they wanted to punish detained
the difference between a lawyer victed of offenses they never for a couple of days, so as to
who had prepared for trial and committed. The result, as you either confess of having done

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