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Right to Free Legal Representation for Robbery with Violence Suspects under Article 50(2) (h) of the Constitution as a Means of Access to Justice

Right to Legal Representation for Robbery with Violence Suspects 

Introduction

As a right to fair hearing, every accused person has the right to a fair trial, which includes the right 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 as Article 50(2) (h) of the Constitution provides. This right is currently being enjoyed by murder suspects, an offence attracting death penalty. However, suspects of robbery with violence an offence which attracts death penalty as well are denied the right. Isn’t it discrimination? The matter arose in David Njoroge Macharia v Republic[1] in which the court failed to address the issue as will be demonstrated.

Apart from the constitution, International laws require the state to provide free legal aid. Article 2 (5) of Constitution makes Kenya a monist state and provides that the general rules of international law shall form part of the law of Kenya. Kenya ratified International Covenant on Civil and Political Rights (ICCPR). Article 14(3) (d) provides that the accused should be tried without payment by him in any such case if he does not have sufficient means to pay for it. This issue was a concern of Lord Denning too.

Lord Denning in Pett v Greyhound Racing Association^[2] stated that “It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses.

An issue that can be raised by counsel is that of positive identity of the accused. The Court of Appeal in Dzombo Chai v R,^[3] stated that evidence of recognition should be treated with great caution and a witness may be honest but mistaken and that evidence of recognition should be credible and free from possibility of error. In David Njoroge Macharia v Republic, the convict robbed the victim at 10.00 pm. The Complainant’s evidence was clear that he could not identify those who robbed him and that was undisputed. This casts doubts whether the convict was positively identified. In Simon Kagoni Wambui v Republic,^[4] PW2 testified that they were attacked at about 10.00 pm while coming from PW 1’s mother’s home and that he was able to identify the Appellant because he had seen him before and where he was living though he did not know his house. Considering and evaluating the evidence of the witnesses in comparison with the guidelines given in authority on identification, the High Court quashed the conviction.

Failure to call vital witness did not come out in David Njoroge Macharia v Republic. Two young men that came over and informed PW1 that they were aware of two robbers called “Njenga” and “Jubilee” did not testify. In Ronald Kiptoo v Republic,[5] the ground for appeal was that the prosecution failed to summon vital witnesses and High Court set aside the trial court ruling. The inference drawn by the failure to call the said witnesses in David Njoroge Macharia v Republic is that the evidence of the witnesses was against the prosecution’s case which is substantial injustice under Article 50(2) (h) of the constitution.

Transition from the 1963 to 2010 constitution

Section 77(14) of repealed constitution denied a right of a person to legal representation at public expense. However, the 2010 constitution came up with paradigm shift under Article 50 (2) (h). The court in David Njoroge Macharia v Republic dismissed the appeal citing the principle of non-retroactivity. The court was correct up to that extent but turned a blind eye to Article 22 of the constitution. What the court simply meant was: “hey you convict, you don’t have rights under new constitution.” The Court had a duty to apply Article 50(2) (h) fully. In addition, some laws apply retrospectively. Section 78 of the Land Act No. 6 oF 2012 apply retrospectively to cure past injustices in charges. The convict in that case was not given legal representation contrary to the constitution and attempts to have a retrial with an advocate were thwarted by the Court of Appeal violating the International laws.

Constitutional petition: John Swaka v Director of Public Prosecutions, Attorney General & 2 others,^[6] sought implementation of Article 50(2) (h). However, the petition was dismissed for being “premature.” The parliament has failed to enact legislation to give full effect to article 50(2) (h) as article 261 (1) of the constitution demands. Up to date Legal Aid Bill is yet to be passed.

The Legal Aid Bill, 2014

Although the Bill under section 29(3) provides for legal representation to those charged with capital offences, the stringent rules makes access to the legal aid impossible. Under Section 29(2) (d), legal aid is only given if the claim in respect of which legal aid is sought has, in the estimation of the Service, a probability of success. The section makes the Service a court to decide the merit of the case before the actual trial!

Recommendations

1. Robbery with violence suspects should be given free legal aid as those charged with murder.
2. The legal Aid Bill 2014 should be amended to have those charged with capital offence have legal aid as a fundamental right to ensure access to justice.
3. Section 29(2) (d) should be amended.

Conclusion

Right to legal representation is provided under Article 50(2) (h) of the constitution as well as under International Laws to ensure access to justice. Persons charged with robbery with violence must be given free legal aid as those charged with murder to avoid absurd scenarios as was in David Njoroge Macharia v Republic. Failure to give legal aid to suspects of robbery with violence is discriminatory and contrary to Article 27 of the Constitution.

By: Ibrahim Emali Otiende

Email: iemmally@rocketmail.com