Examining prosecutor’s duty to disclose exculpatory evidence and the right to fair trial in Kenya

Otulo, Mary
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Strathmore University
The right of an accused to a fair and just trial is as universal as it is absolute. Save for instances where there is a shift of evidential burden, an accused cannot be compelled to provide evidence in proof of their innocence. The sole bearer of the burden of proof is the prosecution which has to establish the guilt of an accused beyond a shadow of doubt. In fact, the prosecution is strictly obligated to not only facilitate the accused in their defence but to also make disclosures of all evidentiary discoveries irrespective of whether inculpatory or exculpatory. This strict obligation is aimed at remedying the undeniable imbalance of power between the state and the accused and while at face value my seem unfair, is functionally sound. Nonetheless, the application of the right of an accused to a fair trial including access to evidence and potential witnesses must be undertaken within the context of several supervening factors. These include, among others, safety of witnesses, confidentiality of materially proprietary information as well as national security. Of concern to this study is safety of witnesses. Discovery must take into account the possible implications of disclosure of personal information of witnesses. This evaluation must be done on case by case basis. Effectiveness of a criminal trial process is thus determined on the basis of the balance of concerns of the state, victims and the accused. This study evaluates the application of these principles in Kenya. It evaluates the role of the prosecution on disclosure of exculpatory evidence, the right to fair trial by interrogating the interplay between the right of accused to discovery and the need to protect witnesses from potential harm on account of such disclosures. The research proceeds against a background that a majority of criminal cases in Kenya often overvalue the right of an accused to full evidentiary disclosure while increasingly paying little attention to the implications of the same, more so on the safety of witnesses. Domestic practice demonstrates that the only realm where witness protection seems to matter and reigns almost absolute is in sexual offences involving minors. The inconsistencies in the application of the principle of fairness brings to the fore the question as to the existing domestic legal instruments are sufficiently equipped at safeguarding the right of an accused to fair trial while at the same time guaranteeing safety of witnesses. To achieve this, the research conducts a qualitative systematic literature review in examining the role of the prosecutor and looking beyond the domestic practice to identify potential lessons Kenya can learn to streamline its approach. The study looks into the application of this interplay in major global legal platforms including the International Criminal Tribunal for Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC). The study is based on Aristotle’s theory of justice specifically distributive justice with an aim of seeking a balance for all parties involved in the criminal justice system. The findings indicate that, in Kenya, as in the international criminal trial platforms, application of evidentiary rules is rather loose, and the determination as to what amounts to witness safety concern or a violation of evidentiary disclosure obligations is purely discretionary. This implies the right of accused to disclosure may be violated without dire consequences to the prosecution while at the same time; the safety of witnesses may be compromised much to the disadvantage of the trial process.
A Thesis submitted in partial fulfillment of the requirements of the Degree of Master of Laws, at Strathmore University
Prosecutor’s duty, Exculpatory evidence, Right to fair trial_Kenya