The Role of Victims in Criminal Proceedings in Kenya

In criminal proceedings, cases are generally styled as Republic v. [Accused Person]. “Republic” is the State, acting through the Director of Public Prosecutions. This means that the victim, the person who directly suffers harm, is not actually a party to the case but is usually a witness in the State’s case against the accused person. This is because crimes are conceptualised as offences against the peace, security, and authority of the Republic of Kenya.

Over the years, the role of victims in criminal proceedings has undergone significant transformation. Traditionally perceived as mere witnesses, victims now possess recognised rights to actively participate in trials, ensuring their voices are heard and interests safeguarded. This shift is anchored in the Constitution of Kenya, the Victim Protection Act, and landmark judicial decisions, notably the Supreme Court's ruling in Waswa v. Republic.

The Constitution lays the groundwork for victim participation. Article 50(9) mandates Parliament to enact legislation providing for the protection, rights, and welfare of victims of offences. This provision underscores the state's commitment to integrating victims into the justice process, ensuring they are not sidelined in proceedings that directly affect them.

Enacted in 2014, the Victim Protection Act operationalises Article 50(9) by detailing the rights and mechanisms for victim involvement in criminal trials. Key provisions include:

• Right to participation: Section 9(1) grants victims the right to be present at their trial, either personally or through a representative of their choice.

• Timely proceedings: Victims are entitled to have the trial commence and conclude without unreasonable delay, aligning with the constitutional guarantee of expeditious justice.

• Access to information: Victims should be informed in advance of the evidence the prosecution and defence intend to rely on and have reasonable access to that evidence.

• Expression of views: Where personal interests are affected, courts must permit victims to present their views and concerns at appropriate stages, ensuring these are considered without prejudicing the rights of the accused or compromising the fairness of the trial.

The Supreme Court's decision in Waswa v. Republic [2020] KESC 23 (KLR) marked a pivotal moment in clarifying the extent of victim participation. The Court affirmed that victims, through their legal representatives, have the right to actively participate in criminal trials, provided such participation does not infringe upon the accused's right to a fair trial or usurp the prosecutorial role of the Director of Public Prosecutions (DPP).

The Court outlined guiding principles for victim participation:

1. Eligibility: The applicant must be a direct victim or their legal representative in the case.

2. Case-by-case assessment: Courts should evaluate each case's unique circumstances to determine the appropriateness and extent of victim participation.

3. Avoiding delays: Participation should not cause undue delays in proceedings.

4. Scope of participation: Victim input should be limited to presenting views and concerns relevant to the case.

5. Non-prejudicial involvement: Participation must not prejudice the accused's rights or conflict with a fair and impartial trial.

6. Questioning witnesses: Courts may permit victims or their representatives to pose questions to witnesses, provided these have not been addressed by the prosecution and are relevant to the case.

7. Understanding roles: Victims and their representatives must recognize that prosecutorial duties remain solely with the DPP.

8. Privacy considerations: Courts may hold proceedings in camera to protect the victim's privacy when necessary.

9. Influence on sentencing: While victims' views are considered, courts are not obligated to follow their preferences regarding punishment.

The integration of victim participation seeks to balance the rights of victims with those of the accused and the interests of the state. While victims can express their views and concerns, their involvement must not compromise the accused's right to a fair trial or interfere with the DPP's prosecutorial discretion. This equilibrium ensures that justice is administered holistically, respecting all parties' rights and interests.