After years of suffering in silence, the plight of victims of crime in Kenya has at last been addressed as envisaged in Article 50(9) of the Constitution. The President assented to the Victims Protection Act on the 14th of September, 2014.
In the justice system the rights of the accused and those of the victims will now be addressed equally, breaking from the conventional common law thinking that the accused’s rights were paramount to the exclusion of others
It is very strongly believed that powers of the sole prosecuting body, the DPP, will come under scrutiny and the risk of his powers being usurped is a real one. Some believe that criminal cases will now be delayed even more and the magistracy faced with mammoth hurdles of application after application, orders of injunctions, judicial review and constitutional references hampering their work.
The new legislation establishes minimum standards on the rights support and protection of victims of crime and gives rights to victims to accessible and understandable information, support services, review decisions not to prosecute and individual assessment to identify vulnerability, special protection measures and compensation.
The Act provides for protection of victims of crime and abuse of power and equipping victims with better information and support services. The Act also provides for reparation and compensation to victims and special protection for vulnerable victims.
In addition, the Act establishes a Victim Protection Board – which will play an important role in policy development – and Victim Trust Fund – to cater for expenses arising out of assistance of victims of crime.
The terms victim and vulnerable victim have been given a very wide and broad definition under the Act.
The Act provides for the right to privacy from intrusion by the media, health professionals, and any other person. The right also includes confidentiality of communication between a victim and support services providers.
Once a victim requests confidentiality, then the investigating agency is not to divulge information pertaining to the residential address, telephone number, email address or place of employment of both the victim and the victim’s family. Disclosure is only entertained to the extent required for the purpose of law enforcement in the proceedings and ensuring the safety and security of the victim.
A victim has the right to be present either in person or through a representative of their choice throughout the trial. In the event of plea bargaining, they are now entitled to give their views.
Most intriguing is the provision relating to cases where personal interests of a victim have been affected. The Act states that in such cases the victims or their legal representatives may be permitted to air their views and concerns in a manner that is not prejudicial to the rights of an accused and inconsistent with a fair trial. Interestingly this provision is a mirror reflection of Article 68 (3) of the Rome Statute.
Traditionally, the position held by the courts was that the complainant – who mostly was the victim of the offence – had no place in criminal proceedings except that of reporting the matter and giving evidence in court. Although, a complainants were allowed to have a legal representative present throughout the trial to safeguard their interests called “watching brief” such a representative was not capable of addressing the court on any matter and had no locus standi.
With this new revolutionary provision, advocates are bound to start addressing the court on behalf of victims and without a doubt this will ensure the interests of the victim are better articulated and safe guarded. Indeed, manipulation of the criminal process largely by corruption of police and other investigators, curtailing investigations, withholding evidence, not summoning pertinent witnesses and general lethargy of prosecutors will now be curbed if a victim takes a proactive stand.
On issues of evidence, the same way an accused person has a right to be informed of the evidence the prosecution intends to rely on, victims now also have the right to be informed in advance of the evidence the defence and the prosecution intend to rely on, and also to have reasonable access to such evidence
Victims of crime will now be able to get redress in instances of intimidation, harassment, bribery, or any form of abuse within the legal system. The right is extended to the victims’ property, a very profound and innovative development.
Additionally, a victim has a right to compensation by the offender for economic loss, loss or damage of property, personal injury, medical expenses and costs of necessary transportation and accommodation resulting from the offence. If such compensation is awarded it is to be enforced in the same way as a judgement in a civil case. As an alternative an award for compensation may be charged to the Victims Trust Fund.
Before sentencing of a criminal a victim can now have a say through a ‘victim impact statement’. Victim services will be established in all counties to ensure that there is equal access to the services and ensure access to court rooms, culturally sensitive services, and facilities for people with disabilities among other services.
Individuals, state agencies, corporate bodies who have hitherto escaped criminal sanctions will now have to judiciously face the wrath of the victims of crime.
Criminal jurisprudence is on the threshold of a new era, but contradictory, confusing and contentious laws and precedents remain to be surmounted.
