Monitoring a Trial for Insurrection

2015 Noga BrodieBy Brodie Noga

The morning heat is starting as the defendants filter into the courtroom. Most are smiling and laughing, some are taking selfies, one jokes that the court is starting to feel like his second home, one is in tears. In total there are 11 men sitting on the bench reserved for the accused, each charged with either participating in or leading an insurrection, facing 10-20 year minimum sentences for the respective counts.

The charges stem from the events of July 15th, 2014, where several hundred protested the closure of Freedom Park, a popular site of political demonstrations. While the police stood by, private security guards took out bamboo batons and began beating protestors. Some members of the crowd retaliated, striking back with PVC flagpoles and batons they had taken from the attacking guards. When the violence settled, both protestors and guards had been injured, some severely. In the days that followed, MPs from the opposition party CNRP who had attended were arrested, along with party officials and supporters.

The proceedings I witness pour cold water on any law school idealism that legal argumentation will carry the day. Contrary to the logical fact patterns we disassemble in final exams, where the law is an abstract and tangible thing, the trial is simply politics by other means. The criminal code provisions are vague and harsh, recent reforms of the judiciary leave judges squarely under the control of the executive, and the rules of evidence are co-extensive with the discretion of the judge. Indeed, there is little attempt to hide the appearance of collusion between prosecutor and the bench, as they periodically take “washroom breaks” and follow one another into their chambers.

The trial is nothing new or unexpected in Cambodia. Criminal charges have been used regularly in the past to give the ruling party bargaining leverage over the opposition.

This is of course troubling on a number of levels. But for a law student emerging from the depths of the academic study of law it represents the danger of learning law solely in the abstract. The law is found not just in its written form, rather it is a practiced enactment of state power.

This may seem like common sense, but it is easy enough to lose sight of when the immediate success in law school depends on your in-depth knowledge of the written law. If anything, this past week has made me reflect on how to be an effective advocate requires not just legal knowledge, but adeptness at negotiating the social and political context in which one is advocating.

The Court System in Kenya: New Environment and First Impressions

2015 Rodriguez MariaBy Maria Rodriguez

Two weeks and a half have past since I arrived in Kenya but the experience has been so intense that it feels as if I have been here for a longer time. I have learned so much about Kenya and its people, (and I have so many stories to tell!!!), but this post is about the way their court system works.

I am in Kenya because I am working for an organization called the Equality Effect that strives to protect the rights of girls and women by promoting environments safe from sexual violence, education, and fulfillment of their economic potential[1]. The Equality Effect’s work in Kenya is done in collaboration with another organization called Ripples International[2] which seeks to safe lives and serve children.

Evidence of the Equality Effect and Ripples International’s work to protect girls’ rights is the “the 160 girls” project[3], which was a successful constitutional challenge to the Kenyan government for the failure to protect girls who had been defiled through a proper investigation and prosecution. “The 160 girls” project has now become a landmark decision in Kenya and both Ripples and the Equality Effect have embarked in the incredible task of ensuring that this promising project is put into action and thus brings real change to Kenyans. My work here is closely related to this project. I am here to support the Ripples’ staff in their daily work while attentively monitoring the impact that “the 160 girls” decision has had on the functioning of justice system. As such, part of the job includes going to police stations to inquire about the status of the investigation of a file, or going to court to monitor the developments of a particular case, among other things.

Given that most of the work here is confidential, I cannot give too many details of the cases and their development. Nonetheless, I will try to convey a snapshot of how the justice system works here in Kenya.

I have already attended four court hearings in these past weeks. From those four, three cases were adjourned to a later date because the given Magistrate in charge was either being transferred to a different court or not present that day. Apparently transfers are very common in the Kenyan justice system. Indeed, Magistrates and police officers are constantly moved around stations and courts across the country. I have been told that the transfers are simply the way the system is set up and that therefore it is unpredictable when or why a Magistrate will have to leave a case unfinished. What is certain, however, is that without a proper transition system between officers or between Magistrates, most cases end up forgotten or have to be re-started. Working with the Ripples social worker, I have encounter that this transferring around is a great challenge for bringing redress to these girls victims of abuse. When officers are transferred sometimes investigations have to be re-started, as we were told it happen for one of the girls. For one other case, the defense lawyer argued that the trial should restart because the new Magistrate would not be familiar with the file. Fortunately, on this occasion we were accompanied by a lawyer who put up a lot of resistance to such proposition. However, the Ripples social workers that go to monitor court hearings are almost never accompanied by a lawyer. This puts some cases at the mercy of the prosecutor who is not always as committed to the cases, as you would want.

Another element that I found interesting of how the courts work in Kenya regards the layout and organization of the court. Although I am not too familiar with how it functions in Canada, it really stroke me that here in Kenya the accused persons of the many cases the court will hear on that day, (because the court hears a mix of cases in one same sitting ranging from property and money disputes, to defilement and abuse), are all mingled within the public. You only realize you’ve been sitting next to someone that is an accused in a case when their names are called up and they have to stand up. In fact, during my first time in court the perpetrator of a case we were following was sitting right across on the other benches. I was stunned to realize that the man that had a raped and impregnated a little girl was just sitting there, across from us. Quickly I realized that that is the way it works and that no one really seems to notice it or be bothered by it. Indeed, even those accused persons that are in custody are brought in by an officer and, sometimes, are sited on a section of the same benches that public uses for lack of better place!

However, although the space is limited and the Magistrates are transferred constantly leaving unfinished cases behind, I attended a hearing at a court that stood out to me; it stood out not because of its facilities or location (it is actually in a very rural area), but because of its Magistrate. In fact, unlike the first three court hearings I went to, the court was called into session on time, there was an order to the way cases were being called out, and the Magistrate was not interested in adjourning cases just to move one. He took his time with each case listening and ensuring that the best course of action was taken. He spoke loudly (because Kenyans are the most soft-spoken people I have met!), and he was interested in making time as productive as possible. Granted this Magistrate was not being transferred, the feeling I had after leaving was not that of frustration, as I had experienced before with the other hearings, but of satisfaction that something had been achieved on that day, even if not a concluding sentence.

This last court hearing showed me that even though things are not as efficient as you would want, there are people who fight against the clustered system pressing for efficient sessions and who are committed to bring justice and doing the right thing no matter how difficult the environment and circumstance. It’s inspiring and sheds some hope for these beautiful and strong girls who have gone through so much already in their short lives. It makes my work worth it and it shows me that one case at a time will slowly create a ripple effect of change as to how rape is investigated and prosecuted here in Kenya. We will see if I can witness that ripple effect in the next 8 weeks that I will be here!


[1] For more information about the Equality Effect visit: http://theequalityeffect.org/

[2] For more information about Ripples International visit: http://ripplesintl.or.ke/

[3] For more information follow: http://theequalityeffect.org/160-girls/

 

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