THE PLACE OF THE VICTIM OF CRIME IN KENYA: A VICTIMOLOGIST'S PERSPECTIVE (PART 1)

In this first part of the series, we shall discuss the concept of criminal justice andattempt a general understanding of what a Criminal Justice System (CJS) is.

1. The Concept of Criminal Justice Criminal justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, and sanctioning those who violate laws with criminal penalties and rehabilitation efforts. The concept can also be understood as the application or study of laws regarding criminal behaviour.

It is important that 'criminal justice' includes the word 'justice', since laws applied to those accused of crime should befair. Justice, however, refers not only to the fair trial accorded to accused persons but also to the just retribution for victims of crime. Criminal justice is always a goal to be met or an end to be reached. The law should be the means to that end. Every person or organ of state involved in the arrest, prosecution, defence, or judgment of a suspect aims - or, at least, should aim - to be fair, both to the suspect and the victim of crime. However, this goal is not always met. This necessitates flexibility in the application of laws and the amendment of unfair laws. The judicial power of interpretation can also be employed constructively to achieve justice where it would otherwise not necessarily be guaranteed by the letter of the law.

One of the important concerns of criminal justice is due process of law. This is a fundamental, constitutional guarantee that all legal proceedings will be fair and one will be given notice of the proceedings and an opportunity to be heard before the State

acts, through a judicial decision, to take away one's life, liberty or property. It can also be understood as a constitutional guarantee that a law shall not be unreasonable, arbitrary or capricious. A United States court in Alabama stated,in the case of Ziegler v South and North Alabama Railroad Company (1877) 58 Ala. 594, that: 'Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved.' The court went further to state that 'Due process of law undoubtedly means, in the due courseof legal proceedings, according to those rules and forms which have been established for the protection of private rights... They were intended to secure the individual from arbitrary exercise of the powers of government,unrestricted by principles of private rights and distributive justice.'

Tricia Ellis-Christenen in 'What is Criminal Justice?' opines, onwhether justice is always achieved through 'criminal justice' that 'Despitetraining, criminal justice is not always just. There are great cops and terrible ones, judges who are too strict and those who are too lenient. There are also very skilled and exceptional lawyers, and very poorly organized lawyers'. Well, add to this unfair laws, as is the case in Kenya, and you undoubtedly have a situation where achievement of justice is the exception, rather than the norm. But we shall delve deeper into this shortly.

2.The Criminal Justice System (CJS)The CJS refers to the entire system by which criminal law is enforced in a society. The system includes such organs of State, law enforcement agencies and institutions that play a role in theprevention of crime and the trial and punishment of criminals. The criminal justice system consists of three main parts therefore; law enforcement (police), adjudication (courts), and correctional agencies and facilities (jails, prisons, probation and parole).

In a CJS, these distinct agencies operate together both under therule of law and as the principal means of maintaining the rule oflaw within society. The CJS thus must operate to enforce criminallaws and punish those who violate them, while also protecting therights of the accused guaranteed by the fundamental laws of the State. Those who are in the criminal justice system, from the police to the advocates, act either as officers of the court or officers of the State. They must at all times respect and protectthe rights of the accused person. However, they must also seek toachieve justice for the victim of crime.

Traditionally, the CJS has been viewed as more concerned with protecting the rights and interests of the accused person. However, in recent times, focus has shifted in many jurisdictionsto the victim of crime, and the CJS has been seen to be undergoing a process of reorientation from crime policy to victimpolicy.

THE PLACE OF THE VICTIM OF CRIME IN KENYA: A VICTIMOLOGIST'S PERSPECTIVE (PART 2)

In this second part of the series, we discuss the various competing interests within a Criminal Justice System (CJS) and bring out the need for the CJS to balance and safeguard all the interests.

3. The various competing interests within a CJSIn the traditional understanding, criminal law is the strict domain of the State, and promotion of justice is seen as balancing the interests of the State against those of the

accused. The reality, however, is that there are more, and probably greater, interests in criminal justice than those of theState and the accused person. The victim of crime, notably, has great interests that the criminal justice system should be responsive to. The larger society also has interests in criminal justice.

3.1. The interests of the arrested, accused and/or convicted personDue to the nature of criminal law, especially the fact that conviction may lead to loss of life, freedom and/or property, there is a need to ensure that the CJS is as fair as possible to accused persons to prevent any likelihood of an innocent person being punished for an offence. The law in its wisdom has thus concluded that even though many who are guilty may be freed, no innocent person should be wrongly convicted, thus the presumptionof innocence. An arrested or accused person would certainly expect that certain steps be taken to ensure that he is not wrongly punished or unnecessarily subjected to what would amount to punishment before and/or during trial.

The interests of the arrested, accused and/or convicted person are best understood by understanding what he would expect from the CJS. In a nutshell, an arrested and/or accused person would expect:-

(a)that charges will be preferred against him promptly so that hemay appear in court and apply for bail or bond and thus regain his freedom;(b)to be granted bond or bail;(c)not to be condemned until and unless the charges against him are proven;(d)that his case will be handled expeditiously and a final determination made speedily so that he can regain his freedom (iffound not guilty) or he can start serving his punishment (especially if it is an imprisonment for a specified period of time) promptly and conclude serving it earlier;(e)to be heard in court so that he can dispute and disprove, where possible, the prosecution’s evidence and present

exonerating evidence;(f)to have a right to be represented by counsel of his own choice, especially in cases in which conviction may have far-reaching consequences such as the loss of life or long-term imprisonment;(g)that upon his conviction, if at all, and before sentencing, the court will allow him an opportunity to explain the circumstances under which he committed the crime and that this explanation (referred to as mitigation) will have a direct impacton the sentence.(h)to be reasonably sentenced. Where the judge or court has discretion, the convict will expect to receive as light a sentence as possible under the circumstances.

Indeed, most of these expectations of the arrested and accused persons have been legislated in various jurisdictions into rightsof arrested and accused persons. In Kenya, these rights are captured within the Constitutional Bill of Rights. The major focus of the rights of an accused person is to guarantee him a fair trial. Indeed, in some jurisdictions, the rights of the accused are referred to as the right to a fair trial or the rightto a fair hearing. These rights were initially confined primarilyto the actual trial itself, but have since been extended by many jurisdictions to the periods before and after the trial.

All legal systems guarantee, at least on paper, certain basic rights to the accused. These include the right to representation by counsel, to present witnesses and evidence that will enable him to prove his innocence, and to confront (that is, cross-examine) his accusers, as well as freedom from unreasonable searches and seizures and freedom from double jeopardy.

3.2. The interests of the victim of crimeVictims of crime are persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws. This definition when expanded would include a multi-victim perspective. Where appropriate, it

includes the immediate family members or dependent of the direct victims and persons who have suffered harm in intervening to assist victims in distress or to prevent victimisation.

Criminal victimization may inflict economic costs, physical injuries, and/or psychological harm. As such, the victim of crimeis necessarily interested in the criminal justice system. The interests of the victim in the criminal justice system can be discussed through a comparison of the legitimate expectations of the victim and the actual rights of the victim of crime within a criminal justice system. The discussion must, however, start by the recognition of the fact that it is the responsibility of the State to protect and safeguard the property and persons of every citizen. Where a crime is committed against a citizen, it could be argued that the State has failed in effectively discharging its responsibility. The rights of a victim must naturally flow from this failure. It is in this context that the State has a greater responsibility towards such a victim.

The victim has the legitimate expectation and indeed the right todemand that that the offender be punished. This expectation and right is held as against the State. The State must thus ensure that there is an effective and efficient mechanism to meet this end. This end is achieved by enacting criminal law, but it cannotbe achieved solely and merely by the enactment of laws. There must be taken deliberate measures to ensure that the law is properly enforced and that criminal justice within the jurisdiction is fair. The mere passing of laws and opening or maintaining of police stations is not sufficient. The system itself has to be refined and fine tuned at all levels.

In an adversarial system such as the Kenyan legal system, a victim passes through four important stages. Firstly, a crime is committed against him. Secondly, he reports the crime to the Police. Thirdly, the crime is investigated and fourthly, if thereis evidence the offender is prosecuted. In each of these stages the victim has a role to play. The interests of the victim withinthe CJS can best be understood by appreciating the expectations of the victim at the various stages, which are as follows:-

(a)At the stage of reporting crime, the victim expects the policeto not only take prompt action and immediately embark on investigations but also to understand his/her situation. The victim expects that he will not be subjected to harrassment, unnecessary questions, ridicule or, generally, any form of secondary victimization especially by the police.(b)At the stage of investigating crime, the victim expects the crime to be solved. This would entail the identification of suspects. The victim expects to see some progress and a likelihood of the perpetrators of the offence being brought to book finally. If the investigations require more time than one would ordinarily expect, the victim will expect that this should be explained to him.(c)At the stage where the offender is prosecuted, the victim expects the court process to be fair. The victim expects to be able to give evidence without fear. Very often the accused is acquitted due to lack of evidence and the law safeguards him against double jeopardy, meaning that he cannot be charged again for the same offence. A victim would expect that there would be apossibility of and legal provisions supporting the re-trial of such cases, provided that there is new and compelling evidence and that in all the circumstances, in the interest of justice, the Court considers that a re-trial should be ordered. The law asit is now, considering the principle of double jeopardy, may facilitate an accused person to go unpunished merely due to initial lapses in the investigations.(d)At the stage of sentencing, the victim plays no major role or no role at all. In jurisdictions where victim impact statements are admissible, the court may consider such statements before sentencing the perpetrator of the crime. Victim impact statements, however, only apply in specific cases especially cases of actual physical injury or death of the victim. Indeed, the victim expects that any loss, injury or other damage he has suffered will inform the court’s sentence.

The victim of crime would reasonably expect that after reporting the crime and assisting with the investigations and subsequent prosecution of the accused person, he would at least get some

compensation either from the State or from the perpetrator of thecrime. However, this is not the case in many jurisdictions. In most jurisdictions, the only consolation (not satisfaction) that the victim of crime gets is that the perpetrator of the crime hasbeen punished.

3.3. The interests of the StateIt is indeed the responsibility of the State to protect and safeguard the property and persons of every citizen. Where a crime is committed against a citizen, it could be argued that theState has failed in effectively discharging its responsibility. The major interest and aim of the State would ideally be that no crime is committed at all. However, considering the inherently evil nature of human beings and other social and economic factorsthat lead to crime, it may be impossible to achieve this.

The State through its legislative organ prescribes what constitutes offences or crimes and the punishment for persons whoengage in these prohibited acts. It is then upon the law enforcement agencies of the State, usually the police, to enforcecriminal law and arrest offenders. The judiciary handles criminalcases and appropriately punishes the criminals. The duty of the State in this context can thus largely be seen as the protection of the property and persons of the citizens, the prevention of crime, the punishment of criminals and restitution for victims ofcrime.

In discharging its duty of crime prevention, the State ultimatelyaims at maintaining peace and order. Peace and order has resultant social and economic benefits on the people and the state, including encouraging investment and tourism, and thus economic growth. When there is relative peace and lower levels ofcrime, the government spends much less proportions of its budgetson the enforcement of criminal law and employs such saved resources in other development projects. Crime prevention can be achieved through employment of more security personnel and officers of law enforcement agencies to ensure adequate provisionof security. It can also be attempted through prescribing more stringent penalties for some crimes with the aim of discouraging

potential criminals from engaging in such crimes, although this does not always work.

Where crimes have occurred, it is the duty of the State, through its law enforcement agencies to investigate the crime. It is further a duty of the State to punish the criminals. The interestof the government here, especially in punishing criminals, is to achieve deterrence, both specific and general, so as to prevent future occurrence of crime.

Whereas it is ideally a duty of the government, having failed in its duty to safeguard and protect the property and/or person of the victim of crime, to compensate or secure compensation for thevictim of crime, this is a duty that most States would not want to impose upon themselves. However, in some jurisdictions, state-funded compensation schemes for victims of crime or laws providing for compensation of victims of crime exist.

3.4. The interests of society in generalCrime affects the general society in many ways. To begin with, especially where crime is rife, every member of society is at risk of being a victim. A considerable proportion of society has also been, at one stage, a victim of crime and would not want to have a similar experience again. However, even where they have not actually been victims of crime, members of society would still prefer a society in which levels of crime are minimal, so that they fell secure and free to carry out their day to day activities in an environment of peace, law and order.

Society thus has a major interest in crime prevention. Members ofsociety would largely be willing to report any known intentions of others to commit crimes so as to avert such a plan. In the same vein, where a crime has occurred, responsible members of society who have any information regarding the crime will be willing to give such information to the relevant law enforcement agency, especially where they are confident that their reports will be acted upon and legal action will be taken against the criminals. Society always wants criminals punished so that both specific and general deterrence are achieved.

It is because of the great interest that society has in the CJS that sometimes public opinion is even seen to influence an independent body involved in criminal justice such as the judiciary. Public opinion may, and indeed does, also influence legislation. Legislation invariably does, or at least should, reflect the ‘collective mind’ or ‘collective thinking’ of society. The same must also apply to criminal legislation. What asociety considers criminal will most probably be legislated as a crime, and what a society considers a serious crime will most probably attract stiffer penalties.

It is important to take into consideration the interests of the general public since public confidence is vital for the proper functioning of the criminal justice system. The police need information from the public to abate crime and the courts need members of the public to appear as witnesses. Where the general society is excluded from policy considerations within the criminal justice system such that they feel excluded from the process of criminal justice, they are not likely to co-operate with the system in its attempt to prevent and punish crime.

THE PLACE OF THE VICTIM OF CRIME IN KENYA: A VICTIMOLOGIST'S PERSPECTIVE (PART 3)

In this penultimate part of the series, we discuss the place of the victim of crime within the Kenyan legal and institutional framework that constitutes the CJS.

4. The place of the victim of crime in the Kenyan criminal justice system (CJS)

Criminal law has gradually become more sophisticated in its concern for the individual

dignity of those accused and convicted of crime. Suspects are generally treated more humanely and increasingly accorded due process. Punishment has become more rational, and rehabilitation programs are becoming widespread. But the victims of crime, to a great extent, have been forgotten. [James E. Culhan, 'California Enacts Legislation to Aid Victims of Criminal Violence' (1965)18 Stanford Law Review 266].

The above captioned words of James Culhan, expressing the situation, in 1965, in the California State of the United States of America unfortunately aptly capture the prevailing situation in Kenya today. Ideally, this post should end here but, lest I beaccused of reaching conclusions that are not backed by facts, forthe sake of my prospective accusers (and, I suppose all of you fall in this category) and for the sake of those who will find this as one of the results when they 'google' something to do with the rights of victims of crime in the process of doing 'research' for a term paper, I shall proceed to do the rather unpleasant job of stating the obvious and pretending to analyse it.

In discussing the place of the victim of crime in the Kenyan criminal justice system, it is imperative that an assessment of the rights of the victims be undertaken vis-à-vis the rights of those suspected and accused of crimes. From the very onset, it would appear that the Kenyan CJS disregards the victim of crime while making several rights guarantees to those suspected and accused of crimes. Pravin Bowry, in his article 'What About the Rights of Victims of Crime?' appearing in The Standard of 22 March 2011,decries this state of affairs in the following words; 'The rights of an accused person in the legal system of Kenya are now so strongly entrenched that investigators and prosecutors are having acute difficulties to secure convictions and fight crime. The new Constitution has strengthened these rights with courts backing those facing criminal charges… What about the rights of victims of crime? Every single crime has a victim. And most sadly this unfortunate person has been

disregarded in our legal system. The physical injury, the emotional trauma, the materialloss and damage to person and sometimes reputation matter not to the law or the stateauthorities.'

The law makes various provisions with regard to the rights of arrested persons and those accused of committing crime. The rights of an arrested person are well captured by Article 49 of the Constitution and include, inter alia, the right to be informed promptly, in language that he understands, of the reasonfor the arrest, the right to remain silent, and the consequences of not remaining silent; the right to remain silent; the right tocommunicate with an advocate, and other persons whose assistance is necessary; the right not to be compelled to make any confession or admission that could be used in evidence against him; the right to be held separately from persons who are servinga sentence; the right to be brought before a court as soon as reasonably possible, but not later than twenty-four hours after being arrested or if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day; the right to at the first court appearance, be charged or informed of the reason for the detention continuing, or to be released; and the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released. In addition, a person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.

Accused persons enjoy the right to a fair trial under Article 50(2) of the Constitution, which right includes the right to be presumed innocent until the contrary is proved; to be informed ofthe charge, with sufficient detail to answer it; to have adequatetime and facilities to prepare a defence; to a public trial before a court established under the Constitution; to have the

trial begin and conclude without unreasonable delay; to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed; to choose, and be represented by, an advocate, and to be informed of this right promptly; to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly; to remain silent, and not to testify during the proceedings; to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence; to adduce and challenge evidence; to refuse to give self-incriminating evidence; to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial; not to be convicted for an act or omission that at the time it was committed or omitted was not an offence in Kenya or a crime under international law; not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted; to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and if convicted, to appeal to, or apply for review by, a higher court as prescribed by law. In addition, an accused person charged with an offence, other than an offence that the court may try by summary procedures, is entitled during the trialto a copy of the record of the proceedings of the trial on request; and has the right to a copy of the record of the proceedings within a reasonable period after they are concluded, in return for a reasonable fee as prescribed by law.

The foregoing are Constitutional rights found within the Bill of Rights. They are thus regarded as very fundamental and important guarantees, as indeed they should be. Their amendment, for

instance, would, whether by parliamentary initiative as provided for under article 256 of the Constitution or by popular initiative as provided for under article 257 of the Constitution,require an approval by a referendum, in which referendum at leasttwenty per cent of the registered voters in each of at least halfof the counties vote and a simple majority of the citizens votingsupport the amendment. In contrast, the only statement in the Constitution relating directly to the protection, rights and welfare of victims of crime is a directive to Parliament, at Article 50(9) of the Constitution to enact legislation providing for the protection, rights and welfare of victims of offences. Indeed, Parliament has up to four years from the commencement date of the Constitution (that is, four years from 27th August, 2010)within which to enact such legislation. There is therefore an evident leaning within the Kenyan CJS towards safeguarding therights of suspects and accused persons as opposed to protecting the interests of victims of crime. Pravin Bowry (supra) describes the situation thus:-

'The new Constitution has made a lukewarm attempt at addressing this important dilemma. Article 50(9) of the Constitution –— ironically under the subheading "Fair Hearing" in Chapter dealing with the Bill of Rights states, "Parliament shall enact legislation providing for the protection, rights and welfare of victims of offences." The time limit given to bring this legislation to fruition is said to be four years under the Fifth Schedule of the Constitution… The scale of justice weighs in favour of the accused. The wait for four years to merely address the matter by legislative policy envisaged in the Constitution is manifestly unfair.'

However, there are provisions within some pieces of legislation that seek to protect some of the interests of victims of crime inKenya. For instance, Section 31 of the Penal Code, Cap 63, provides that any person who is convicted of an offence may be adjudged to make compensation to any person injured by his offence, and the compensation may be either in addition to or in substitution for any other

punishment. However, the practice has been that punishment of offenders has been focused more on attempting to achieve deterrence as opposed to addressing victim’s need for compensation, with the result being that the death penalty, jail sentences and fines are the most preferred forms of punishment for convicted criminals in Kenya. Compensation for victims of crime is hardly ever considered. Section 3I(1) of the Witness Protection Act provides for the establishment of the Victims Compensation Fund. The Fund was established, according to section31(4)of the Act, to cater for restitution to a victim or to the family of a victim of a crime committed by any person during a period when such person is provided protection under the Act; compensation for the death of a victim of a crime committed by any person during a period when such person is provided protection under the Act, to the family of such victim; and any moneys required to meet expenses relating to any other matter incidental to or connected with the aforementioned matters. However, the Fund does not apply to all victims of crimes but only to those provided protection under the Act. By virtue of section 3(2) of the Act, a person shall be a protected person forthe purpose of the Act if that person qualifies for protection byvirtue of being related to a witness; or on account of a testimony given by a witness; or for any other reason which the Director of the Witness protection Agency may consider sufficient.

According to Lala Camerer in 'A Victim-centric Approach to Crime Prevention' (1996) 5 African Security Review 6, Victims of crime have certain emotional and practical needs, such as counselling, referral, information on investigations and court procedures, as well as compensation. Between the initial contact with the policeand an encounter with confusing court procedures, few provisions or services are available in Kenya to accommodate the crime victim’s needs or to reduce the impact of a traumatic experience.

Indeed, sometimes, Kenyan victims of crime end up undergoing secondary victimization in the very hands of the law enforcement agencies, particularly the police, who are supposed to assist them in their quest to find justice. There are not provided within the Kenyan criminal justice system counselling services for victims of crime, for instance.

As ‘gate-keepers’ to the CJS, the police play an important role in shaping the crime victim’s initial experiences. Although dependent on victims to report crime and co-operate throughout the investigation, internationally police attitudes towards victims are found wanting. In Kenya, this is even more pronounced. In terms of support services for victims, police activities internationally majorly focus on juvenile victims and victims of gender crimes. Kenya is no different in this regard and a limited number of specialised services for victims of certain crimes, such as sexual offences or child abuse, have beenestablished. For instance, there are special desks for reporting sexual offences in Kenyan Police stations. Police officers are specially trained to deal with these victims in a confidential and sympathetic manner. However, these support services do not extend to other kinds of crimes and are therefore of limited effect on victims of crime, viewed in the wider context. Apart from these specialist areas of innovation, little has changed with respect to police attitudes or responses towards victims of crime in general.

In Kenya, criminal procedure is mostly focused on apprehending the offender, rather than consoling the victim. Deterrence ratherthan restitution is the pivot of Kenya’s justice system, and of all the role-players, the victim tends to be the most marginalised. If an accused is arrested, the case is conducted asa matter between the State and the offender, where the State in effect ‘steals’ the conflict from the victim, to render a crime

that has been committed, a crime against the State. The victim isoften merely a witness to proceedings, and is considered an ‘itemof evidence’ or a ‘non-person’. Apart from the consequences such an approach has for compensation and restitution, the victim is made to feel that justice is on the side of the offender, giving criminal justice a whole new meaning. Since the system is not designed to deal with the practical, financial, medical or mentalhealth problems that victims may face, many might resort to retributive action if the situation does not improve. However, focusing on the victims of crime may impact on wider perceptions of courts as places where justice is done, and may inhibit retributive action. Internationally, the situation is different in some jurisdictions with reforms already on course to ensure greater protection of victims of crime. Lala Camerer (supra) states in this regard;

'Internationally, reforms have been introduced that ensure that victims are not treated as mere witnesses, but are provided with information on the outcome of their case, as well as compensation and counselling. In some countries, improvements to the victim’s position in the criminal justice process have been embodied in a victim’s charter dealingwith specific rights, including the right to be heard with regard to the impact of the crime on a victim’s life; the opportunity to submit the victim’s wishes and desires to the court, and that these are taken into account during sentencing; and the right to restitution, protection and separate waiting areas at court.'

Victim impact statements are recognised in Kenya under sections 329A to E of the Criminal Procedure Code (CPC). A victim impact statement is a document intended to provide information to the court concerning the physical, financial, emotional and psychological effects of a crime on a victims’ health and, where relevant, his or her family. The Criminal Procedure Code defines a victim impact statement as;

'…a statement containing particulars of—

(a) in the case of a primary victim, any personal harm suffered by the victim as a direct result of the offence; or (b) in the case of a family victim, the impact of the primary victim's death on the members of the primary victim's immediate family.'

Recent research in South Africa about the viability of introducing such measures as victim impact statements or victim statements of opinion for victims into South African courts showed that allowing a victim to submit into proceedings details of how the violent crime affected his or her life, will help deliver more appropriate sentences and promote credibility for the criminal justice process.

In general, the Kenyan law of criminal procedure seems to favour the accused person at the expense of safeguarding the interests of the victim of crime. In most cases, the victim of crime is thecomplainant. Non-appearance of the complainant when the case is fixed for hearing leads to an acquittal of the accused under section 202 of the CPC. This may even in the very first instance.The only exception to this is when ‘for some reason [the court] thinks it proper to adjourn the hearing of the case until some other date, upon such terms as it thinks fit. This can lead to aninjustice, especially where there is a genuine reason for the complainant’s non-attendance which the complainant was unable to communicate to the court in time. However, it can also be taken advantage of by a criminal to find ways of preventing the complainant from attending court so that the matter can be dismissed. Indeed, if the State takes charge of criminal prosecution and uses the complainant merely as a witness, why would the non-attendance of the complainant (a witness) lead to the dismissal of the case and acquittal of the accused when the witness can simply be summoned to attend court and warrants of arrest issued in case of default?

Section 394 of the CPC provides for the reimbursement, by the Government, of witnesses and complainants attending court for purposes of an inquiry, trial or other proceedings under the CPC.In practice, however, such reimbursement is hardly ever made.

There are also other provisions within other pieces of legislation that can be of great disadvantage to victims of crimeand can even lead them to avoid reporting crimes. For instance,section 38 of the Sexual Offences Act provides that any person who makes false allegations against another person to the effect that the person has committed an offence under the Act is guilty of an offence and shall be liable to punishment equal to that for the offence complained of. Whereas this provision seeks to guard against making of false allegations considering the grave nature of the crimes that the Act provides for, it could lead to further victimization of legitimate victims of sexual offences. For instance, where investigations are conducted in a shoddy manner by the police the perpetrator of a sexual offence may actually be acquitted. This perpetrator may then proceed to rely on section 38 of the Act to accuse the victim of the sexual offence of making false allegations against him.

There is currently a growing concern in Kenya over the need for restitution or State compensation for victims of crime. Internationally, government compensation rests on the premise that since the State is obliged to maintain law and order, and that crime results from a failure to fulfill this duty, compensation must be paid accordingly. Compensation schemes in other jurisdictions differ depending on the definitions of crimesincluded in their cover; the degree of loss or harm; the obligation to co-operate with authorities; and consideration of the victim’s conduct. Usually, only victims of violent crimes receive compensation. In most countries, the prevailing notion isthat compensation is not a right, but a reward given to

‘deserving’ victims. Consequently, compensation schemes only reach a small proportion of victims, with most either unaware of their eligibility for compensation or not being encouraged to apply. In Kenya, however, there is no compensation scheme for victims of crime or any other large-scale mechanism aimed at achieving restitution for victims of crime, yet there is no reason why such a scheme should not operate in Kenya. Section 31 of the Penal code makes an attempt at providing for such compensation and empowers the court to adjudge anyone convicted of an offence to make compensation to anyone injured by his offence. However, the courts are reluctant to make use of these powers, and in most cases victims are left empty-handed. Since the State acts on behalf of victims in criminal cases in Kenya, the State is usually the beneficiary any fines imposed upon convicted criminals. Victims are often unable to institute civil charges even where such an option exists, thus forfeiting any possible monetary restitution. Compensation is regarded as an important symbol of society’s recognition that victims of crime have suffered loss.

G.S. Bajpai offers a useful summary not only of the plight of thevictim of crime in the context of the Kenyan CJS, but indeed alsothe plight of the victim within many CJSc worldwide. He states:

'The experiences in most countries of the world tell us that the formal system of criminaljustice, due to various reasons, has not been fully successful in achieving its objectives. Mounting arrears in the court, delay in disposal of cases and consistently rising rate of acquittals resulted in the loss of public confidence in the system. Besides, it was felt thatthe victims of crime who ought to be in the centre are often marginalized in the criminal justice process. Whatever may be the outcome of the case in court, the fact remains that the victim does not get any substantial gain to mitigate his/her victimization. Nothing helps the victim to restore and repair the damage caused to him/her by crime. Mere an aggressive response to crime problem does not benefit the victims. Neither putting the offender behind the bars serve any purpose nor by isolating

him any progressive solution to the conflict between the victim and the offender can be effected.'