Participatory rights of victims of mass casualty incidents: the case for an ICC-model in redefining victims’ participatory rights in Kenya

Abstract

In the context of evolving victims’ rights to participate in criminal proceedings, it has become pressingly important to strike a balance between their right to participation and the need for speedy trials. This issue becomes even more critical in an adversarial criminal justice system, such as Kenya's, where the process has traditionally been limited to the participation of the Prosecutor and the Defence. Enacting the of the Victim Protection Act, 2014 (VPA) in Kenya has brought with it an extensive array of rights accorded to victims during the criminal justice procedure. Against this backdrop, this study seeks to explore the concept of victimhood, the challenges posed by mass casualty incidents in ensuring victims' participatory rights, and the inadequacies of Kenya's current legal framework in addressing these issues. Anchored on John Rawls’ Justice Theory, the study employs a doctrinal research methodology, drawing insights from primary sources such as statutes and case law, as well as secondary sources including scholarly works and journals. The significance of this research lies in its potential to influence legal practices, procedures, and policymaking, mostly in Kenya, especially when dealing with victims of mass casualty incidents. Ultimately, this study finds that borrowing aspects from the International Criminal Court’s approach will help fill some of the gaps in Kenya’s framework. These include broadening the understanding of victimhood and the definition of a victim and expanding victims' rights under the VPA to allow for active engagement, such as challenging evidence while safeguarding the accused’s right to a fair trial.