Dilemma of modern judicial systems on the law of evidence

The criminal justice system in modern times is on the horns of a dilemma.

On the one hand are the vigorously protected rights and liberties of an accused person; on the other hand is the quest for justice for the victims of nefarious activities.

Then there is the criminal justice system, whose cogs — though cutting across multiple institutions — must work in unison to deliver wholesome justice.

An article by Michael Mugwang’a, ‘Let justice be proof law is not an ass (Daily Nation, February 21), demonstrates this conundrum.

The writer alleged that the “Court of Appeal sitting in Nairobi had quashed a life sentence handed (down) to Elgivia Bwire Oliacha for terrorism-related offences”, clearing the way for his imminent release from prison.

The article further alleged that the judges acquitted the confessed terrorist on a technicality.

CHARGES
While judicial officers never have to defend their court decisions in public discourse, it is the duty of those of us in communications to ensure that we weigh in whenever facts are injudiciously twisted to suit partisan arguments.

Let us briefly look at the facts of the case. Following an attack at Kaka Bus Stage, on Racecourse Road, Nairobi, on October 24, 2011, Oliacha was arrested and charged with nine counts.

Counts one and two involved causing grievous harm; count three was engaging in organised criminal activity; counts four, five, six and seven were being in possession of a firearm without a firearm certificate and counts eight and nine being in possession of ammunition without a firearm certificate.

Oliacha appeared before the Chief Magistrate and pleaded guilty to all the nine counts.

LIFE IMPRISONMENT
With regard to the counts of causing grievous harm, the prosecution informed the court that the investigating officer was unable to obtain P3 forms to confirm the identity and extent of the injuries sustained by the two complainants.

The prosecutor however said that he had been to the hospital and, in his view, the injuries were serious.

The accused confirmed that the facts given by the state counsel relating to all the charges facing him were true and he did not wish to say anything in mitigation.

The magistrate sentenced Oliacha to life imprisonment on counts one and two and 15 years for count three, while the other counts attracted a seven-year jail term for the convict.

The sentences were to run consecutively — meaning that time for each count would be served separately.

COURT OF APPEAL
However, Oliacha appealed the sentence in the High Court.

Whereas the High Court dismissed the appeal, the sentence was revised to run concurrently instead of consecutively — meaning he would serve the jail terms simultaneously.

Oliacha then went to the Court of Appeal, which set aside the conviction relating to causing grievous harm but dismissed the appeal relating to counts three to nine.

The effect of the Court of Appeal judgment is that Oliacha is serving a 22-year prison sentence.

The reason that led to the Appellate Court setting aside the conviction in regard to counts one and two was that the prosecution had failed to produce evidence to show that the complainants had sustained injuries, which in law, amounted to grievous harm.

EVIDENCE
Medical evidence is key. Courts often hold that, for such an accused person to be found guilty, P3 forms or medical records must be produced in court as evidence. This is not a mere technicality.

Without the production of the P3 forms or any medical records, there was no way of telling whether the injuries were slight, moderate or grievous.

Only a doctor could ascertain this. Not the police, the prosecution or even the victims.

This case therefore brings to light the responsibilities of the different actors in the criminal justice chain.

CLAIMS
The court must ensure that the case against the accused person is proved beyond reasonable doubt.

In this case, failure to produce medical evidence created doubt as to whether the complainants, indeed, suffered grievous harm as alleged.

The assertion that the accused person would be released soon following the judgment of the Court of Appeal is, of course, not true — unless one considers 22 years to be “soon”.

Ms Wambui is the deputy director, Public Affairs and Communication, The Judiciary. [email protected]