Attending a Trial. Or Not.

I spent yesterday morning in the Makadara Law Court and learned more about the Kenyan law system in three hours than I have since I came here.  But first I will digress for just a moment.

There is a large United Nations summit of some sort taking place at my hotel this week to discuss Somalia.  I am sure the agenda is sobering; security certainly is.  I went in to breakfast this morning (which plays country music each day; this morning it was “The Gambler” and “You Picked a Fine Time to Leave Me, Lucille”) and requested my normal 2 boiled eggs from the young woman at the egg station in the buffet line. 

When I went back to get them a little later, I waited while the cook finished helping the man in front of me.  She told me the eggs were “just ready,” and as she was fishing them out, another man came around me and said he would take the boiled eggs.  She told him they were for the “lady there.”  Ignoring me completely, he told her, “I will take them.”  She looked at me, I shrugged my shoulders and she gave them to him.  I hope he takes a different tack in the diplomatic discussions.

Back to Makadara.  The courtroom in general is laid out similar to ours.  There is a box for the judge at the front facing the room.  In front of that is a table, with court personnel on one side – the Orderly (similar to our Bailiff) and Clerks – and lawyers and police prosecutors on the other side facing the judge. 

There is a box to the right where the accused stands, and a witness box to the left, where the witness stands and testifies.  The are several rows of (very hard) benches at the back of the room for the public.  I will get a picture if I am there when court is not is session.

The Magistrate came out right at nine and started a call process.  She spoke in English and one of the clerks translated into Kiswahili to the defendants.  (The new Constitution expressly provides that Kiswahili is the “national” language of Kenya, and that Kiswahili and English are the “official” languages.) 

The first several cases were postponed for various reasons that sounded pretty familiar – the defendant’s lawyer was not there, a witness did not show up, the prosecutor needed more time to prepare, the defendant was sick, the official file was not in the courtroom, etc.  As the judge issued her orders postponing the trial, she wrote them herself into the court file.

In yet another familiar scenario, the Magistrate ordered the parties to go out into the hallway for 10 minutes and settle the matter.  The defendants were a husband and wife.  The accuser was a neighbor who said they had taken one of her animals; she was willing to accept money and an apology to drop her charges.  The defendant husband was willing to do that; his wife was not.  They settled.  This apparently is a very common way to resolve criminal charges, a process often rife with corruption at all official levels.

As each lawyer left, he or she turned to the court and bowed (some of them pretty perfunctory) before they turned their backs and left the room.

The prosecutions all were handled by the same Police Prosecutor, a large burly woman, dressed impeccably in a navy blue pants suit uniform (with  epaulets) and large gold earrings.  She was authoritarian and intimidating and I liked her immediately. 

I was there to watch the trial for a case that involves sexual abuse or “defilement” against a 14 year old girl.  When the little girl's parents both died, she and her baby sister moved in with their aunt. 

One day while her aunt was looking for work, a neighbor man, who looked about 30-35, told her she was supposed to come over to his house and pick up something her aunt had left there  When she went over to the house, he took the baby from her, set the baby down outside and lead the girl into his house and raped her. 

She screamed and two neighbor women came to her rescue. The young girl received a medical exam, which confirmed that she was sexually assaulted.

The police report, the medical report and statements from the victim and the two witnesses were in the file I reviewed.  The little girl was there to testify, accompanied by her aunt, her baby sister and a male friend.

I expected a trial; instead, one witness testified and was cross-examined by the defendant’s lawyer and the case was sent to another court for a new date to take more evidence.  There was no identification of the charges, no opening statement, no summary of what had gone on before, and no discussion afterwards of what would happen next, other than the need for a new date to provide more testimony from the police prosecutor.  After waiting in another courtroom for 1 1/2 hours, the new date was set for August.

The trial process subsequently was explained to me as follows:

1.         A complaint is filed against the accused, who is brought to court and officially charged.

2.         At some later date set by the court, the Police Prosecutor begins to provide evidence to the court through witnesses, who do not appear all at once.  The prosecutor may provide a fact witness at one appearance, the treating doctor at another, and other witnesses at yet another time.  The other side is allowed to cross-examine.

            In one case, the Police Prosecutor was ready to proceed with four witnesses, but the Magistrate said she only had time to hear two, and the others would have to come back at a later time.

            A lawyer may assist the Police Prosecutor in the cases, but is not allowed to speak in court.  This is called “watch briefing.”

3.         When the Police Prosecutor finishes with the state’s evidence, which takes months if not years, the Magistrate then decides if the evidence is sufficient to support the charge and decides if the defendant must answer.  If not, the case if over; if the evidence is sufficient, the defendant then starts the same evidence process.  Although unclear to me, rebuttal appears unusual.

4.         When all evidence is heard, the Magistrate makes a decision, prepares a report and enters judgment.  If the Magistrate leaves the bench for any reason during the pendency of the suit, the parties can agree to let the new Magistrate pick up and continue the case or request that the evidence start over.  The defendants, not surprisingly, usually request the latter.

5.         The clerk is supposed to prepare a hand-written transcript of the testimony taken in court, so testimony is given slowly.  (Note that I went to the Kibera court yesterday afternoon to review files; extensive hand-written notes in the files were little more than scribbling and undecipherable in either English or Kiswahili.)

            6.         The accused can appeal a conviction.

I left the courtroom after a couple of hours.  I bowed to the Magistrate first.