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…

Some news from Phnom Penh

patrickBy Patrick Reynaud

The first few weeks in Cambodia have been quite fascinating.

I am working at The Cambodian League for the Promotion and Defense of Human Rights, known as LICADHO. This is one of the most prominent human rights NGOs in the country, founded in 1992 by Dr. Kek Galabru. LICADHO is very active on a varied number of fronts pertaining to the promotion and defense of human rights. Prominent issues recently have included abusive expropriations, also known as land grabs, performed by government authorities on behalf of business interests either closely linked or forming an integral part of the current governance structure. Significant and sometimes violent relocalizations of entire communities, without proper compensation, have abounded in recent years, both in Phnom Penh and the provinces. Another important area of activity for LICADHO of late concerns threats by government authorities against human rights defenders.

Unfortunately, community representatives, journalists, NGO members, monks and many other individuals who voice their opinion against the government on various issues, including land grabs, have found themselves imprisoned. Common charges include disinformation or incitement, which are criminal offenses and are used by public prosecutors in order to silence government critics, as well as political opposition. Sam Rainsy, leader of the opposition against the Cambodian People’s Party of longstanding Prime Minister Hun Sen, escaped abroad after being charged with destruction of property and incitement by the courts. Mu Suchua, another prominent opposition politician was recently charged with defamation against Hun Sen, for holding a press conference where she accused the Prime Minister of defamation. She has refused to pay the fine, and is likely to be imprisoned shortly for contempt of court.

These problems highlight what appears to be an endemic and recurring issue, namely the lack of a consistent rule of law in Cambodia. The executive branch seems to wield a heavy influence with the judiciary. Issues of impartiality and corruption unfortunately abound. The legislative structure is arguably in place to ensure respect for human rights and the democratic process. What lacks is an independent judicial authority to enforce laws.

For instance, judge Ney Thol, a longstanding President of the Military Court and member of the ruling Cambodian People’s Party Central Committee, is best known for presiding at two major trials where Prime Minister Hun Sen’s political opponents were convicted of national security related crimes. In 1998, he sentenced then opposition leader Norodom Rinariddh to 30 years imprisonment. Later, in 2005, he condemned opposition politician Cheam Channy to 7 years of detention. During this trial he barred defense lawyers from calling witnesses and interrupted their cross-examination of prosecution witnesses. Judge Ney Thol is now a member of the Extraordinary Chamber in the Courts of Cambodia (ECCC), an international tribunal responsible for trying former Khmer Rouge leaders involved in the genocide that occured in the late 1970s.

Although the most prominent cases include opposition politicians, many individuals critical to the current regime have unfortunately been condemned of or threatened with spurious legal charges. The most recent trend for intimidation involves the release of human rights defenders on bail. Pending charges will often not proceed to trial, but niether will they be dropped, to serve as a tool guaranteeing the good behavior of those released.

A recent personal experience highlighted issues pertaining to official authorities. I was unfortunately stopped by police on a Phnom Penh boulevard while riding my motorcycle. The policeman promptly demanded $50, while threatening to confiscate my vehicle and to bring me to the local police station. An interesting negotiation session ensued, whereby the informal payment was reduced to $5 for the multiple driving offenses I was ostensibly guilty of. The most effective way to avoid dealing with local authorities is to ignore their summons to pull over when apprehended; unfortunately the particular layout forced me to stop the vehicle. Police as civil servants are poorly and irregularly paid, and as a result most fines are informal payments meant to complement their income.

Another worrisome trend has been the Cambodian government’s repeated intention to pass a law on Associations and Non-Governmental Organizations, commonly known as NGO law. The official purpose of the law would be to curb crime and corruption on the part of NGOs, as well as to prevent terrorist activity, both of which are already dealt with under the penal code and anti-terrorist legislation. The law would most likely be used to restrict freedom of association by denying registration to NGOs critical of government policies.

Working at LICADHO has been quite interesting. My coworkers are warm and welcoming. I have travelled to the south and Sihanoukeville with some colleagues, as well as Kirirom National Park, as the motorcycle gives an easy opportunity to travel on week-ends. The country is quite beautiful, and I naturally look forward to visiting the north and Angkor Wat later in August.

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