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Conceptualisation and Operationalisation of the Right to a Fair Trial in Criminal Justice in Kenya

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Conceptualisation and Operationalisation of the Right to a Fair Trial in Criminal Justice in Kenya CONCEPTUALISATION AND OPERATIONALISATION OF THE RIGHT TO A FAIR TRIAL IN CRIMINAL JUSTICE IN KENYA By Busalile Jack Mwimali A thesis Submitted to the School of Law, the University of Birmingham For the Degree of DOCTOR OF PHILOSOPHY School of Law The University of Birmingham August 2012 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. Abstract This thesis explores issues concerning the conceptualisation and operationalisation of the right to a fair trial in the Kenyan criminal justice system. In particular, it looks at how and why there have been many difficulties with the implementation of this universal set of values that have been recognised since the adoption of the formal legal system in Kenya, and which have been enshrined in the Constitution since independence. A number of overarching questions are addresses. First, the factors that hindered the full realisation of the right to a fair trial under the recently repealed Kenyan Constitution are identified. Secondly, enquiry into whether the shortcomings of the repealed Constitution in that regard have been fully addressed by the new Constitution adopted in 2010 is made. And thirdly, the impacts of factors outside the formal law which may have affected the practical operation of certain core elements of the right to a fair trial are identified and explored. It is argued in the thesis that the problems presented for realisation of core fair trial rights in Kenya are not entirely attributable to shortcomings in the formal law and cannot thus be fully addressed from the formal law perspective alone. Attention is therefore drawn to contextual issues that affect the operation of the right to a fair trial in Kenya. The impacts of factors outside the formal law such as poverty, illiteracy, corruption and cultural perceptions, which may have affected the practical operation of certain core elements of the right to a fair trial, are thus identified and explored. In light of these contextual factors, a number of approaches that exploit the informal traditional African dispute resolution mechanisms that might be used to address the problems that curtails the full enjoyment of the right to a fair trial so as to achieve at least a better enforcement of fair trial rights in the country are also offered. i Acknowledgement In the four year period within which this thesis was written, I received tremendous support and assistance that defined the shape of this research from many quarters. I am particularly indebted to my supervisors Dr. Adrian Hunt whose unceasing support and meticulous guidance remained exceptional to the very end. His critical comments on my thesis not only improved the final product but importantly stretched my thoughts to look at perspectives that I would not have thought of by myself. I am also grateful to the University of Birmingham which offered me a post-graduate teaching assistantship without which I could never have been able to meet my financial needs over the period when I was a full-time student. In the course of the my doctoral research, I was also honoured to engage with the staff and post- graduate students at the school of law who at various stages offered useful insights and critical comments on the draft versions of some chapters. The subject of this thesis was partly influenced and developed whilst I was visiting the University of Dar-es-Salaam, and the assistance offered by Prof. Chris Maina Peter was invaluable. The visit to Kituo Cha Sheria and the Legal Resources Foundation in Nairobi between March and June 2010 played a further role in the final document and the discussions with the staff at the University of Nairobi, School of Law, Parklands Campus and my colleagues at the Kisumu campus offered appreciable insights. I also benefited immensely from suggestions and remarks on various draft chapters from advocates Geoffrey Muchiri, Caroline Shilakho, Samson Alosa and Gordon Ogado. My sincere gratitude to my wife who understood and bore with my absence at a critical time in our marriage when we were expecting our first child; to Betty Soita for being not just a sister but a friend, a mentor and a source of encouragement; and to my parents for their love and support. All Glory be to the Almighty God. ii Table of Contents Abstract ..................................................................................................................................... i Acknowledgement ................................................................................................................... ii Table of Contents ................................................................................................................... iii CHAPTER I: ........................................................................................................................... 1 INTRODUCTION AND BACKGROUND TO THE STUDY ............................................ 1 1.1. Introduction to the Chapter ............................................................................................ 1 1.2. Foundation of the Right to a Fair Trial .......................................................................... 2 1.2.1. Development and Entrenchment of the Values in the Right ....................................... 2 1.2.2. Scope of the Protection Offered Within the Right ...................................................... 5 1.2.3. Fair Trial and Criminal Processes ............................................................................... 6 1.2.4. Dilemmas in Fair Trial Discourses ............................................................................. 8 1.3. The Fair Trial Question in Contemporary Kenya........................................................ 11 1.3.1. Emergent Tensions in the Operation of the Right in Kenya ..................................... 12 1.3.1.1. The Post-election Violence and The Hague Process ........................................ 13 1.3.1.2. The Military Activities in the Mt. Elgon Region .............................................. 14 1.3.1.3. The Mungiki Menace ........................................................................................ 16 1.3.1.4. The Constitutional Reform Debate ................................................................... 16 1.3.1.5. Conclusion ........................................................................................................ 18 1.3.2. The Research Questions and Scope of the Study ...................................................... 18 1.3.3. Delimitation of the Study .......................................................................................... 19 1.3.3.1. Institutional Independence and Impartiality ..................................................... 21 1.3.3.2. The Right to a Timely Trial .............................................................................. 23 1.3.3.3. Equality of Arms and Issues of Legal Representation ...................................... 25 1.3.4. Approaches to the Research and Methodology Adopted in the Investigation .......... 27 1.3.5. Outline of the Study .................................................................................................. 28 CHAPTER II: ........................................................................................................................ 31 FORMALISTIC CONCEPTION OF THE RIGHT .......................................................... 31 2.1. Introduction ................................................................................................................. 31 2.2. Conceptualising the Right through its formal Sources in Kenya ................................ 33 2.2.1. Introduction ............................................................................................................... 33 2.2.2. The Constitutional Safeguards .................................................................................. 34 2.2.2.1. General Operation of the Right under the Repealed Constitution .................... 34 2.2.2.2. General Protection of the Rights under the 2010 Constitution ......................... 37 2.2.2.3. Conclusion ........................................................................................................ 40 2.2.3. Statutes as Sources of Protection of the Right under the Repealed Constitution ...... 41 2.2.3.1. Introduction ....................................................................................................... 41 2.2.3.2. The Evidence Act .............................................................................................. 41 2.2.3.3. The Criminal Procedure Code .......................................................................... 42 2.2.3.4. Subsidiary Legislation ...................................................................................... 44 2.2.3.5. Conclusion ........................................................................................................ 45 2.2.4. Substantive Common Law as a Source of the Right ................................................
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