The apex court, in considering an appeal by murder accused Joseph Lendrix Waswa, against a High Court and Appeal Court ruling that the victim’s family had a right to participate in his trial, said criminal justice processes should empower victims and their voices should be heard. 

This was not only as witnesses for the prosecution but as rights holders with a valid interest in the proceedings and the outcome of the case.

Waswa is accused of killing student Mitch Kibiti Barasa. 

Counsel for his family asked for leave to actively participate in the proceedings, rather than just observe as a “watching brief”.

The trial judge ruled in their favour. 

She said the Victim Protection Act (VPA) allows for victims to participate, either directly or through a representative.

She ruled that the legal representative could make submissions at the close of the prosecution case - whether there was a case to answer, final submissions about whether he should be put on his defence, and on points of law.

Aggrieved, Waswa appealed, but lost and he then took the matter to the Supreme court, arguing that his constitutional right to a fair trial was being impinged and that the family’s counsel were, in effect, a second prosecutor.

The Director of Public Prosecutions took sides with Barasa’s family submitting that the High Court order was not open-ended, and the right to actively participate could only be exercised upon meeting certain conditions, including making an application to the court which would be determined by the judge, weighing up public interest and the interests of the administration of justice.

Counsel for the family said they, and the victim, also had a right to a fair trial.

The court agreed.

“Although the adversarial criminal trial process is a contest between the State, represented by the DPP, and the accused, represented by defence counsel, and the traditional role of victims is often perceived to be that of a witness for the prosecution, it is without doubt that, flowing from both the constitution and the VPA, a victim too has the right to participate in criminal proceedings,” the court said.

“The participation of victims, though a novel trend in our laws, is in accord with international developments.”

The judges said the rights of an accused could not be considered in isolation without regard to those of the victim and the criminal justice system should cultivate a process that inspires the trust of both sides.

It was up to the trial judge to protect the rights of all parties involved.

The judges issued “guiding principles” to trial judges considering applications for active participation. 

These include:

*The applicant must be a direct victim or his/her legal representative;

*The granting of such rights must not cause any undue delay in the proceedings;

*The presentation must be limited to the “views and concerns” of the victim;

*It must not be prejudicial to the accused;

*Questions may be posed to witnesses that have not already been posed by the prosecutor;

*The judge remains in control over the right to ask questions;

*While the court has a duty to consider the victim’s views and concerns, there is no obligation to follow the victim’s preference for punishment.

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