Even violent muggers have a right to fair trial

Over the last few weeks, crime in Nairobi has hit unprecedented levels. It has always happened that people get mugged and are stolen from, but I doubt it has ever reached this level, where people are stabbed in broad daylight.

There’s been a clamour to have the situation dealt with, with some even advocating for those gangsters to be shot dead. Which, in legal terms, is referred to as extrajudicial killing.

Is it then possible to have this happen? Can police officers be allowed to shoot down these criminals if this will end crime? The letter of the law answers in the affirmative.

Anyone suspected of being involved in a criminal offence ought to be arrested. Pursuant to Article 49 of the Constitution, upon this arrest, they should be informed of why they have been arrested, of their right to remain silent and consequences for not doing so.

They also have the right not to be compelled to make confessions, to communicate with an advocate or any person who may be of help, to be held separately from persons serving a sentence and to be arraigned in court within 24 hours, or before the end of the next court day if arrested on a public holiday or on a weekend. An arrested person also has the right to be released on bail or bond, pending trial.

An accused person should be presumed innocent until proven guilty. They should be informed of the charge with sufficient detail, accorded adequate time and facilities to prepare a defence, and given the chance to choose and be represented by an advocate. If not having an advocate would result in a substantial miscarriage of justice, the state will appoint an advocate for an accused person at its own expense.

The trial must be before an open court established in the Constitution. (It is for this reason that members of the public can go to any court to listen to the proceedings, unless it is a sensitive matter). It must also begin and be concluded without unreasonable delay. During the trial, the accused person has the right to be present when being tried, unless their conduct makes it impossible for the trial to proceed.

They have the right to be informed, in advance of the evidence, the prosecution intends to rely on, to adduce and challenge evidence and to refuse to give self-incriminating evidence. If the accused does not understand the language used at trial, they have the right to get an interpretation at no cost.

One may also not be convicted for an act which at the time of commission was not a crime in Kenyan law or international law. Where the punishment for an offence changes over the course of trial, the accused person should be granted the least severe punishment.

Some people have raised queries as to whether this is necessary. If, for instance, someone stabs a person going about their business, why do we have to take them through a trial? Why not just weed out such an element from society by having them killed? Some even say a person violating another’s rights deserves no rights.

The other issue that influences this school of thought is the fact that these criminals are sometimes not convicted. Due to the high standard of proof in criminal cases, they may be acquitted for a lack of sufficient evidence, after which they go back to committing crime.

That said, we remain in this interesting place where accused persons have certain rights accrue to them. No matter how outraged we become by their conduct, there are certain safeguards protecting them.

Allowing extrajudicial killings also carries with it the risk of having a rogue police force that kills innocent civilians to solve vendettas under the guise of them being ‘criminals’. Suffice to say, if the justice system works efficiently, the rights accruing to an accused person will pose no threat to society.