Kenyan Courthouses: Handwriting, Missing Witnesses and Wrong Numbers

2014-ODell-AnnieAnnie O’Dell

This is my fourth week in Kenya for my internship with the Equality Effect. I am working in Meru, with a student from the University of Toronto. We have been placed with a partner organization, who does almost everything. It has an orphanage, a health clinic, it provides micro-loans, there’s a school, and most importantly, a rescue centre. The rescue centre currently houses about 25 children, most of whom have been defiled (sexual assault of a minor). They offer them counselling, legal support, medical support, and aid during the transition into motherhood for the girls who become pregnant. Only those girls who either have nowhere to go or are in danger within the community are admitted, others are treated at home.

 Our job is to comb through the files since the 160 Girls decision was made last year to document how police treatment has changed, if at all. The decision clearly stated that the police must diligently fulfil their obligations to all children who bring a complaint of defilement to them. The belief is that, as Meru was ground zero for 160 Girls, the police here are the most likely to be compliant (the decision was binding across the country).

The most interesting part of our job is going to court. We’ve so far seen been to two trials… sort of. The Kenyan legal system is slow and delays happen regularly, mostly for reasons that would not fly in Canada.

Our first court date was at the courthouse in the city. Most of the Courthouse is outdoors, while the courtrooms are indoors. We checked a typed list posted on a notice board to see in what order our case would come. It was supposed to be a mention for an elderly man who had allegedly defiled a girl of 14. (I’m still not entirely certain what a mention is, but in this case, it meant the accused had a chance to accept or deny the evidence placed against him). We waited outdoors, on three long benches under a corrugated roof, for the accused’s name to be called. We sat at one end of the bench with the social worker and the mother of the victim. At the other end of the bench, probably no more than 20 metres away, awaited the accused who was out on bail. While I am not so familiar with Canadian courthouses, I was upset by the casual nearness the accused and the victim were expected to endure. Particularly in such a sensitive case.

Eventually, the accused’s name was called and we followed him into a magistrate’s chambers. The Courts are undergoing a transition, and the magistrates are currently hearing cases in their chambers. The room was barely big enough for the magistrate’s large desk, a desk for a bailiff/secretary, a bench crowded with the accused and his lawyer, and us four standing partially out in the hallway. Kenyans are very soft-spoken people, so I unfortunately did not hear anything. But we were in out and out of that room within a few minutes.

Apparently, a new magistrate was assigned to the case. When this happens, the accused is asked if he wished to re-start the trial or continue. I am unsure what the accused chose, but I believe he did choose to continue. The mention never came though, because the case notes were not typed. The magistrate then adjourned for another month or so, even though the case has been on-going for over a year already. This sort of delay is a frequent occurrence.

Another, even more frequent type of delay, is the absence of witnesses at trial. The second day we spent at a different courthouse. Once again, we checked for our accused’s name on a bulletin board and saw that it would take place in Courtroom 1. We waited for the courtroom to open (about an hour later than it was supposed to) and entered. We, and many others, squeezed into a tiny courtroom on three very uncomfortable wooden benches. A female magistrate eventually walked in. They called one accused at a time to begin their mention or hearing. While it took place in Kiswahili, it was easy to understand that many witnesses and some accused were missing. It was finally our accused’s turn. He was accused of defiling his tutee, his defence was that he thought she was over 18. He stood up. Some questions were asked in Kiswahili. One name was called. Silence. Another name called. More silence. Neither the doctor nor the police appeared to testify. Case adjourned for another month.

We then headed to the police station to enquire why the officer never showed up. We waited on the compound for over an hour to get an answer. The officer was back in the city (about 90 minutes away). But the officer who was helping us went above and beyond. He dug through handwritten files to discover we had with us the wrong court file number. He found us the right one (one digit off). That case has been closed for several months. The accused had been sentenced to 15 years imprisonment! Great news! Though we still have no idea whose trial we witnessed…

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