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Juma
and Others v Attorney-General
(2003) AHRLR 179 (KeHC 2003)
Juma
and Others v Attorney-General
High
Court of Kenya at Nairobi, 13 February 2003
Judges:
Mbogholi and Kuloba
Previously
reported: [2003] 2 EA 461 (HCK)
An accused person’s right to pre-trial discovery
Fair
trial (meaning of fair hearing, 8,
10, 18, 21; facilities for preparation of defence, 10-12; pre-trial
disclosure of material statements and exhibits, 13-19, 24, 27, 28, 30, 31,
33; adversary process, 20; presumption of innocence, 25)
Limitations (onus on alleging party to prove limitations are
justified, 33)
Mbogholi
and Kuloba JJ
[1.]
It does not really matter how one puts it but what is raised in this
reference is the very important question as to the right to access to
information where a person facing criminal charges before a court of
competent jurisdiction requests pre-trial disclosure of the prosecution
witnesses' statements - the accused requesting copies of statements from
potential witnesses for the prosecution on the ground, basically, that he
requires disclosure of such information for the protection of his rights.
It is a question which is at the centre of the constitutional doctrine of
the fundamental right to the protection of the law secured by, among other
things, being afforded a fair hearing within a reasonable time by an
independent and impartial court established by law, being given adequate
time and facilities for the preparation of one's defence and being given
facilities to examine witnesses against one in a criminal case. It is a
doctrine entrenched in sections 70 and 77(1), (2)(c) and (e) of the
Constitution.
[2.]
The genesis of this constitutional reference is the charging of the
applicants with certain criminal offences, whereupon the applicants applied
to the trial court, before the commencement of the trial for orders that
the prosecution do supply to the applicants copies of the statements made
by the would-be prosecution witnesses and copies of exhibits on which the
prosecution will rely at the trial - in particular, they want to be
furnished with copies of exhibits taken from them by the police during
criminal investigations. The trial court turned down this application and
eventually the applicants have come to this Court in this reference
complaining that their rights under sections 70, 77(1) and 77(2) of the
Constitution of Kenya are in danger of being violated by the applicants not
being allowed to have access to the prosecution witnesses' statements and
exhibits. Those provisions say that for the purposes of a fair hearing and
within a reasonable time a person who is charged with a criminal offence is
to be given adequate time and facilities for the preparation of his defence
and he is to be afforded facilities to examine the witnesses called by the
prosecution. The issue for our determination centred on section 77(2)
paragraphs (c) and (e) and we are to state the constitutional meaning and
extent of a fair hearing within a reasonable time and giving an accused
person copies of statements of witnesses to be called by the prosecution
and copies of exhibits.
[3.]
The applicants' case is that an accused person is entitled to those
prosecution witnesses' statements and exhibits (in copy form), which the
prosecution intends to rely on at the trial. They say that this right is
subject only to the rules governing privileged communication. They say that
as accused persons they will not be able to prepare for their defence if
they are not availed of these facilities. It is not, they say, unusual to
furnish the accused with copies of statements of prosecution witnesses
before trial. For instance, they say, this is done in proceedings under the
Armed Forces Act (Chapter 199); and, they add, in the civil process
discovery and inspection devices that are employed to aid the other side to
know the case of his opponent in advance of the hearing, without any harm.
Keeping one's case secret until the trial is a thing of the past and serves
little or no useful purpose today. On these arguments we were asked to
state what it is that amounts to affording an accused person adequate
facilities to prepare his defence.
[4.]
The issue had arisen before the trial court which denied the applicants
these very requests, on two grounds: that the practice in subordinate
courts does not allow such cases; and that police have standing orders
(Standing Order 32) according to which an accused person is not allowed to
have access to police files. The state, in opposing the applicants' request
for the desired information, says that any facility to which an accused
person is entitled must be expressly provided for in the Constitution of
Kenya or in a particular statute and can be availed only when the trial is
underway and going on, but not before the trial begins, except in cases
tried in the High Court only.
[5.]
In this connection the state said that the only facilities to which an
accused is entitled are the summoning of a witness or being allowed to
engage a lawyer of his own choice as provided for in section 77(2)(e) of
the Constitution of Kenya, but at his own expense and again only in the
course of a trial but not before the trial begins. In the case of
statements of the witnesses for the prosecution the state argued that such
statements are not to be availed to an accused person until after the
witness concerned has testified on it. The only other facilities which the
state says are envisaged by the Constitution are those which accord an
accused the procedure where a case before a subordinate court proves
unsuitable for summary trial; in which case under section 220 of the
Criminal Procedure Code (Chapter 75), you apply to him the provisions
relating to the committal of accused persons for trial before the High
Court. The others are the facilities in relation to committal documents,
under section 231 of the same Code, by which it is provided that not less
than 14 days before the date fixed for committal proceedings, the
prosecutor shall furnish the accused person or his advocate with one set of
the committal documents. It was said that there is no provision in the Criminal
Procedure Code for the equivalent of discovery in the civil process, there
is no power to order the prosecution to produce statements of prosecution
witnesses and exhibit documents, there is no rule of disclosure expressly
provided for in Kenya with regard to the criminal process in subordinate
courts.
[6.]
Those were the arguments on both sides setting out and supporting the case
for each party. The relevant provisions of the Constitution of Kenya which
are under focus in this reference are in the following words:
77(1) If a person is charged with a criminal offence,
then, unless the charge is withdrawn, the case shall be afforded a fair
hearing within a reasonable time by an independent and impartial court
established by law.
(2) Every person who is charged with a criminal offence:
(c) shall be given adequate time and facilities for the preparation of his
defence. (e) shall be afforded facilities to examine in person or by his
legal representative the witnesses called by the prosecution before the court
and to obtain the attendance and carry out the examination of witnesses to
testify on his behalf before the court on the same conditions as those
applying to witnesses called by the prosecution.
[7.]
What troubles the parties to this reference is the meaning to be given to
these provisions. We do not find any sensible difficulty at all with regard
to the meaning and intention of these provisions and their effect on the
instant reference. We begin with the expression in section 77(1), 'a fair
hearing' or trial.
[8.]
It is an elementary principle in our system of the administration of
justice, that a fair hearing within a reasonable time, is ordinarily a
judicial investigation and listening to evidence and arguments, conducted
impartially in accordance with the fundamental principles of justice and
due process of law of which a party has had reasonable notice as to the
time, place and issues or charges, for which he has had a reasonable
opportunity to prepare, at which he is permitted to have the assistance of
a lawyer of his choice as he may afford and during which he has a right to
present his witnesses and evidence in his favour, a right to cross-examine
his adversary's witnesses, a right to be apprised of the evidence against
him in the matter so that he will be fully aware of the basis of the
adverse view of him for the judgment, a right to argue that a decision be
made in accordance with the law and evidence. The adjective 'fair'
describing the requisite hearing requires the court to ensure that every hearing
or trial is reasonable, free from suspicion of bias, free from clouds of
prejudice, every step is not obscure, and in whatever is done it is
imperative to weigh the interest of both parties alike for both, and make
an estimate of what is reciprocally just. The processing and hearing or
trial of a case must be free from prejudice, favouritism and self interest;
and the court must be detached, unbiased, even-handed, just, disinterested,
balanced, upright and square. There must be shown all the quantities of
impartiality and honesty. So a fair hearing is one which has the following
minimum elements present. It must be one: (1) where the accused's legal
rights are safeguarded and respected by law; (2) where a lawyer of the
accused's choice looks after his defence unhindered; (3) where there is
compulsory attendance of the witnesses if need be; (4) where allowance is
made of a reasonable time in the light of all prevailing circumstances to
investigate, properly prepare and present one's defence; (5) wherein an
accused person's witnesses, himself, or his lawyer are not intimidated or
obstructed in any improper manner; (6) wherein no undue advantage is taken
by the prosecutor or anyone else, by reason of technicality or employment
of a statute as an engine of injustice; (7) wherein witnesses are permitted
to testify under the rules of the court within proper bounds of judicial
discretion and under the law governing testimony of witnesses; and (8)
where litigation is open, justice is done, and justice is seen to be done
by those who have eyes to see, free from secrecy, mystery and mystique.
[9.]
And as section 77(1) itself requires, a fair trial, having the above
minimum qualities, must be undertaken, prosecuted and concluded within
reasonable time, before and by an independent and impartial court
established by law. These aspects do not arise for consideration on the
present reference and we are mentioning them only for completeness of the
interpretation of sub-section (1) of section 77.
[10.]
Sub-section (2) paragraphs (c) and (e) of section 77 of the Constitution of
Kenya is an elaboration on sub-section (1) and is an amplification of what
a fair hearing or trial of a case ought to be. The sub-section requires in
essence that for a hearing to be fair a person charged with a criminal
offence must be afforded among other things 'facilities for the preparation
of his defence' and 'facilities to examine the witnesses called by the
prosecution and to obtain the attendance and carry out the examination of
witnesses to testify on his behalf'. He must be given and afforded the
facilities to do those things. In practical terms his constitutional edict
is satisfied only if an accused person is given and allowed or afforded
everything which promotes the ease of preparing his defence, examination of
any witnesses called by the prosecution and securing witnesses to testify
on his behalf. He must be given and afforded that which aids or makes
easier for him to defend himself if he chooses to defend the charge. In
general terms it means that an accused person shall be free from difficulty
or impediment and free more or less completely from obstruction or
hindrance in fighting a criminal charge made against him. He should not be
denied something the result of which denial will hamper, encumber, hinder,
impede, inhibit, block, obstruct, frustrate, shackle, clog, handicap,
chain, fetter, trammel, thwart or stall his case and defence or lessen and
bottleneck his fair attack on the prosecution case.
[11.]
We say so because we believe that the framers of our Constitution intended
the expression 'facilities' in this section to be understood in its
ordinary everyday meaning, free from any technicality and artificial
bending of that word. In its ordinary connotation that word means the
resources, conveniences, or means which make it easier to achieve a
purpose; an unimpeded opportunity of doing something; favourable conditions
for the easier performance of something; means or opportunities that render
anything readily possible. Its verb is to 'facilitate' and means to render
easy or easier the performance or doing of something to attain a result; to
promote, help forward, assist, aid or lesson the labour of one; to make
less difficult; or to free from difficulty or impediment.
[12.]
That is what the Constitution of Kenya requires, in mandatory terms, the
court to do in every case. The accused must be given and afforded those
opportunities and means so that the prosecution does not gain an undeserved
or unfair advantage over the accused; and so that the accused is not
impeded in any manner and does not suffer unfair advantage and prejudice in
preparing his defence, confronting his accusers and arming himself in his
defence and so that no miscarriage of justice is occasioned.
[13.]
Therefore in our considered judgment the provisions of the Constitution of
Kenya under consideration can have life and practical meaning only if
accused persons are provided with copies of statements made to the police
by persons who will or may be called to testify as witnesses for the
prosecution, as well as the copies of exhibits which are to be offered in
evidence for the prosecution. This is not a novel idea. It is well known
and approved in this country under the Emergency Regulations and it was
never found to prejudice the prosecution at all. See Kamau and Others v
Regina [1954] 21 EACA 203 where this practice was approved by the Court of
Appeal for Eastern Africa. This is only a recognition of the accused's
elementary right to fair trial which depends upon the observance by the
prosecution, no less than the court of the rules of natural justice. No
authority is needed for such a proposition. On the broad basis of this
right an accused person is plainly entitled (subject to statutory
limitations on disclosure and public interest immunity) to be supplied in
advance with copies of statements to the police by persons to be called as
witnesses for the prosecution, and those who prepare and conduct
prosecutions owe a duty to the court to ensure that all relevant evidence
of help is either led by them or made available to the accused reasonably
early.
[14.]
In an open and democratic society based on freedom and equality with the
rule of law as its ultimate defender such as ours the package constituting
the right to a fair trial contains in it the right to pre-trial disclosure
of material statements and exhibits. In an open and democratic society of
our type courts cannot give approval to trials by ambush and in criminal
litigation the courts cannot adopt a practice under which an accused person
will be ambushed. Subject to the rights of every person entrenched in the
Constitution of Kenya and including the presumption of innocence until
proved guilty beyond reasonable doubt, the fundamental right to a fair
hearing by its nature requires that there be equality between contestants
in litigation. There can be no true equality if the legal process allows
one party to withhold material information from his adversary without just
cause or peculiar circumstances of the case.
[15.]
These are very compelling reasons to support our conclusion that an accused
person should be informed well in advance of a hearing, of the evidence
against him. The statements given to the prosecution by the witnesses and
the exhibits if made available to the accused will enable him well before
his appearance in the court for trial, to have the fullest opportunity to
prepare for trial. By making a complete disclosure of the prosecution case,
the accused gets to know the whole of the material that will be put against
him: this is one important function of the committal procedure for cases to
be tried in the High Court and it is useful.
[16.]
Likewise, a preparatory discovery in anticipation of trial, has much to be
said in its favour. In the case of unsophisticated or uneducated accused
persons and witnesses who are often beyond reach by telephone or postal
delivery and arrive in court only on the morning of the hearing of the
trial, great harm is suffered if they had not seen beforehand the
prosecution's case against them. Each witness for the prosecution has to be
cross-examined virtually immediately and without any meaningful opportunity
to prepare. Without knowing in advance what the next witness will say, the
accused or his advocate is deprived of the opportunity to confront a
witness with the evidence to be given by witnesses to be called later. In
addition, the accused is generally unable to conduct any sort of
investigation in order to determine, for example, whether an identification
witness was actually at the scene, or has poor eyesight, or was sober at
the time of the incident, because the accused is given no idea what any
particular witness might be called to testify to. These are some of the
serious handicaps on the accused under a procedure which denies pre-trial
disclosure.
[17.]
The fullest possible pre-trial access to information held by or in the
control of the prosecution helps the accused or his advocate to determine
precisely what case the accused has to meet, to prepare for
cross-examination, to determine what witnesses are available to him, to
make further inquiries if necessary and generally to explore such other
avenues as may be available to him. Obviously the constitutional right to
be represented by a lawyer of one's choice would be meaningless if it did
not mean informed representation. Moreover, an accused's right to adduce
and challenge evidence cannot be exercised properly unless he can determine
from the statements and exhibits of the prosecution's witnesses whether
there are witnesses favourable to him who can be either those who had
already made statements to the police or others who were mentioned in such
statements. On looking at a statement made to the police, if the
prosecution have not called the maker of the statement as a prosecution
witness the accused may decide whether he should call him.
[18.]
Section 77 of the Constitution of Kenya guarantees every accused person a
fair hearing. A trial in a criminal court is in the nature of a contest. A
fair hearing requires, by its nature, equality between the contestants,
subject to the supreme principles of criminal jurisprudence, requiring the
presumption of innocence and that the guilt of the accused be proved beyond
any reasonable doubt. When one of the contestants has no pre-trial access
to the statements taken by the police from potential witnesses the contest
can neither be equal nor fair.
[19.]
In addition, given the undoubted inequality as between the prosecution and
the accused in many cases like with regard to access to forensic scientists,
it is of paramount importance that the duty of disclosure be appreciated by
those who prosecute and defend in criminal cases.
[20.]
We are fully aware that in the adversary process of adjudication the
element of surprise was formerly accepted and delighted in as a great
weapon in the arsenal of the adversaries. But in the civil process this
aspect has long since disappeared and full discovery is a familiar feature
of civil practice. This change resulted from acceptance of the principle
that justice is better served when the element of surprise is eliminated
from the trial and the parties are prepared to address issues on the basis
of complete information of the case to be met. It is therefore, surprising
that in criminal cases in which the liberty of the subject is usually at
stake, this aspect of the adversary system can be supported to linger on;
and it is even more surprising that there should be resistance to any
extent to discovery in criminal practice. Non-disclosure is a potent source
of injustice and even with the benefit of hindsight, it is often difficult
to say whether or not an undisclosed item of evidence might have shifted
the balance or opened up a new line of defence.
[21.]
It is not easy to justify the position which clings to the notion that the
prosecution does not have the legal duty to disclose all relevant
information. Opponents to such disclosure sometimes say that the duty
should be reciprocal, so that the accused too should disclose his case
before trial. This will be considered when an occasion presents itself for
its consideration. It does not arise in the present reference before us.
But while it deserves consideration in the future, it is not a valid reason
for absolving the prosecution of its duty. In opposing disclosure, however,
sight is always lost of the fundamental difference in the respective roles
of the prosecution and the defence. Always remember that the purpose of
criminal prosecution is not to obtain a conviction; it is to lay before the
court what the court considers to be credible evidence relevant to what is
alleged to be a crime. The prosecutor has a duty to see that all available
legal proof of the fact is presented; and this should be done firmly and
pressed to its legitimate strength, but it must also be done fairly. The
role of the prosecutor excludes any notion of winning or losing: his
function is a matter of public duty than which in civil life there can be
none charged with greater responsibility. It is to be efficiently performed
with an ingrained sense of the dignity, the seriousness and the justness,
of judicial proceedings.
[22.]
The fruits of the investigation which are in the possession of the
prosecution counsel are not the property of the prosecution for use in
securing a conviction: it is the property of the public to be used to
ensure that justice is done. The public pays for the state to carry out the
investigations. The accused, too, as a taxpayer meets the expenses of the
police investigations. In contrast, the accused has no obligation to assist
the prosecution and is entitled to assume a purely adversarial role towards
the prosecution. He is presumed to be innocent in the first place. Why
should he help in being investigated? The absence of a duty to disclose on
his part can therefore be justified as being consistent with this role and
presumption of innocence.
[23.]
It is sometimes feared that a general duty to reveal all relevant
information would impose onerous new obligations on the prosecutors
resulting in increased delays in bringing accused persons to trial. But
this fear would be offset by the time saved which is now spent resolving
disputes such as this one surrounding the present reference and dealing
with matters that take the accused by surprise. In the latter case
adjournments are frequently the result of non-disclosure and more time is
taken by a defence advocate who is not prepared. Indeed much time would be
saved and therefore delays reduced by reason of increase in guilty pleas,
withdrawal of charges and shortening of preliminary hearings. Proper
disclosure of evidence of great force may cause the accused to plead
guilty, and this would be to the advantage both of the administration of
justice and of the accused.
[24.]
Other opponents of disclosure advance as a ground of their opposition that
the material disclosed will be used to enable the accused to tailor his
evidence to conform with the information of the prosecution, for example a
witness may change his statement to conform with a previous statement given
to the police. It is said that the accused with knowledge of the contents
of the statements of the prosecution witnesses will falsely adjust his own
evidence or his case in order to escape conviction. But this is not a valid
fear. Disclosure is not to help liars tell more convincing lies but to help
even one innocent person go free. There is nothing wrong in a witness
refreshing his memory from a previous statement or document. The witness
may even change his evidence as a result. This may rob the cross-examiner
of a substantial advantage but fairness to a witness may require that a
trap not be laid by allowing the witness to testify without the benefit of
seeing contradictory writings which the prosecutor holds close to his
chest. The search for truth is advanced rather than retarded by disclosure
of all relevant material.
[25.]
Moreover, the reasoning that the accused will falsely adjust his own
evidence or his own case to escape conviction assumes in advance of the
trial that the accused is guilty of the offence charged and is likely to
act dishonestly. Such reasoning offends the principle contained in section
77(2)(a) of the Constitution of Kenya which vests the accused with the
right to be presumed innocent until he is proved or has pleaded guilty.
[26.]
A matter which alarms opponents of a broad duty of disclosure is the fear
that disclosure may put at risk the security and safety of persons who have
provided the prosecution with information. But protection of the identity
of informers is well covered by separate rules related to informer
privilege and exceptions thereto (see Marks v Beyfus [1890] 25 QBD 494) and
any rules with respect to disclosure would be subject to this and any rules
of immunity.
[27.]
There is an overriding concern that failure to disclose impedes the ability
of the accused to make full answer and defence. The right to make full
answer and defence is one of the pillars of criminal justice on which we
heavily depend to ensure that the innocent are not convicted; and the
erosion of this right due to non-disclosure may lead to the conviction and
the incarceration of an innocent person. Anything less than complete
disclosure by the prosecution falls short of decency and fair play.
[28.]
An accused person needs to know in advance the case which will be made
against him if he is to have a proper opportunity of giving his answer to
that case to the best of his ability. Failure to disclose statements and/or
exhibits in advance and their use at trial may lead to material
irregularity in the course of the trial.
[29.]
We find arguments against the existence of a duty to disclose before trial
groundless while those in favour are overwhelming. We therefore hold that
there is a general duty on the part of the state to disclose to the accused
all the material which is known or possessed and which ought to be
disclosed, and it proposes to use at the trial and especially all the
evidence which may assist the accused even if the prosecution does not
propose to adduce it.
[30.]
At the same time, however, we hold that this obligation to disclose is not
absolute. It is subject to the discretion of the trial court both with
regard to denying disclosure and to the timing of disclosure. The
discretion must be exercised judicially; there must be respect for sound
principles, the law and certain facts shown to be present. Thus for example
there is a discretion not to allow disclosure:
(1)where there are grounds for fearing that disclosing a
statement might lead to an attempt being improperly made to persuade
a witness to make a statement retracting his original one, to change his
story, not to appear in court or otherwise to intimidate him; or
(2)where the statement is sensitive and for this reason
it is not in the public interest to disclose it, for example: (a) one
dealing with matters of national security; (b) one disclosing the identity
of an informant where there are good reasons for fearing that disclosure of
his identity would put him or his family in danger; (c) one by, or
disclosing the identity of a witness who might be in danger of assault or
intimidation if his identity is known; (d) one which contains details
which, if they became known, might facilitate the commission of other
offences or alert someone not in custody that he was a suspect; (e) one
disclosing some unusual form of surveillance or method of detecting crime;
(f) one containing details of private delicacy to the maker and/or which might
create risk of domestic strife.
[31.]
Moreover, disclosable matter, and the obligation to disclose, only arises
in relation to evidence which is or may be material in relation to the
issues which are expected to arise or which unexpectedly do arise in the
course of trial.
[32.]
In many cases there will be voluntary disclosure but in the event of
resistance the trial court will have to resolve the issue. If difficulties
arise in a particular case the trial court may be the final judge, with a
right of appeal unimpaired. Each case will depend on its own peculiarities
and what we have listed above are examples only, and do not form an
exclusive and exhaustive list of what may be considered by the trial court.
In broad terms the trial court should be guided by the general principle
that information ought not to be withheld if there is a reasonable
possibility that the withholding of information will impair the right of
the accused to make full answer and defence, unless the non-disclosure is
justified by the law on state security and other good reasons like the
security and safety of witnesses or persons who have supplied information
to the investigation, irrelevance and interference with the investigation.
[33.]
We hold that the state is obliged to provide an accused person with copies
of witness statements and relevant documents. This is included in the
package of giving and affording adequate facilities to a person charged
with a criminal offence. In this connection it is for the prosecution to
establish special circumstances upon which any limitation to the right of
access may be based. The state must adduce evidence in individual cases to
establish precisely what documents or statements or persons are to be
protected and the basis for such limitation. In other words the onus of
establishing the justification for a limitation of any of the fundamental
rights guaranteed by the protection of the law provisions of the
Constitution, must be on the party alleging such justification to derogate
from the constitutional guarantees.
[34.]
In this case we were not told precisely what statements and exhibits were
in question. We order that the prosecution disclose to the accused all the
statements made by the prosecution witnesses, and the exhibits; but if it
has any objection to disclosing any of them, it shall indicate to the
accused what is objected to and the reason for such objection. If upon
receiving such objection the accused shall still want disclosure of what is
objected to, the accused will be at liberty to ask the trial court to
determine the objection and direct and order accordingly, giving reasons
for deciding the matter one way or the other. In reaching a decision the
trial court shall be guided by the principles which we have set out in this
judgement, and any relevant law.
[35.]
Accordingly, we allow the reference, and direct a trial at which the
statements and exhibits shall be disclosed to the accused before the
commencement of the trial, unless there shall be a valid ground for
non-disclosure. Any statutory provision in any legislation, or any police
standing orders or other instrument which tends to limit this fundamental
right guaranteed by the constitutional edicts which ensure the protection
of the law, would be contrary to, and contravene the Constitution of Kenya
and shall to the extent of the inconsistency with the Constitution, be
void.
[36.]
Having said the foregoing based on broad constitutional principles, we
believe that in allowing extensive but controlled rights of access to
information in the police files and exhibits, no prejudice will be
occasioned to any party. If anything, the ends of justice shall surely be
achieved and justice will reasonably be expedited.
[37.]
We so order.
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