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"id": 195161,
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"type": "speech",
"speaker_name": "Mr. M. Kilonzo",
"speaker_title": "The Minister for Nairobi Metropolitan Development",
"speaker": {
"id": 47,
"legal_name": "Mutula Kilonzo",
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"content": " Thank you, Mr. Speaker, Sir. I would like to take this opportunity to thank my learned friend and co-Senior Counsel, by some accident of history and politics because there are only two Senior Counsels in 840 PARLIAMENTARY DEBATES May 6, 2008 this august House this time. I want to salute the Attorney-General, Mr. Wako, for bringing forward this law. Mr. Speaker, Sir, I have no doubt in my mind that history will come to judge what you are doing this afternoon as the grace of God; giving you an opportunity to chair the debate on this very critical law in our country. It would be recalled that one of the critical agreements in the National Accord and Reconciliation Act was the long-term issue of legal and institutional reforms. I would like to say very firmly, without fear of contradiction, that the reform of our criminal justice system is as big as even the constitutional reform. Although my learned friend, the Minister for Justice, National Cohesion and Constitutional Affairs, was telling me that I should be digging up tunnels for the city of Nairobi and create bypasses and so on, she wanted me to leave the responsibility of seconding this Bill to her but she finally conceded. Even Mr. Orengo similarly wants to contribute to this very critical law because we must and it is essential that we be seen by the world as reforming our criminal justice system. Mr. Speaker, Sir, I would like to mention a few things that are so critical here. For the first time, as a country, we are going to be recognised as a country that recognises the rights of the victim to crime. It is not fair for the present establishment of criminal justice system where it appears that we are always only concerned with the rights of the accused person. I know they are very important and you and I have spent all our lives defending people charged with crime. But at the back of our minds and the back of the mind of any lawyer worth his salt, is the knowledge that even as he defends his client; even as he helps his client to grapple with the law book once it is thrown at him, it is the knowledge that there is a victim somewhere in the background. Mr. Speaker, Sir, the time has come for us to send a message to the country and the world that we are a modern state whose responsibility includes accepting the wide-ranging effects of crime as to cover not just the victim but also members of their family. Mr. Speaker, Sir, the other item, although by extension, that is essential for this House to note is the question of compensation. In fact, it provides that, if at any time, the contemplated agreement, we call it plea bargain but in this case plea agreement, contemplates an impact on a victim, then the victim will have a right of say, right of hearing and, in fact, right to comment on the terms of the agreement. This is an exceedingly important aspect of the future of criminal justice system in this country so that we can show that we are serious about what we want to do. The other amazing thing in this Bill is that, again, under Clause 137(f), the Attorney- General has gone out of his way to yet again emphasise the rights of the accused person before he enters into a plea agreement. When this matter goes to the Departmental Committee, I want to persuade him to even embrace and probably consider accepting an amendment so that we also include, once and for all. In law the process of discovery which you, Mr. Speaker, Sir, are well aware of, which has now been introduced into our jurisprudence by the courts through the Court of Appeal and also the High Court itself whereby an accused person is now, for the first time, and this goes barely four or five years now, entitled to all material, evidence, statement, the investigation that the prosecution may have created. Right now, and without speaking too much out of class, there is an issue that has arisen as to whether that responsibility that has been created by the courts of the stage to supply the accused person with discovery material, whether that right also extends to the accused person himself. Mr. Speaker, Sir, I, personally, share the view that if it is discovery, it ought to cut both ways. I think in the process of amending this Criminal Procedure Code through this Bill, this is, perhaps, the right opportunity so that Parliament does not have to come back to it in due course to find suitable language and proposals to, once again, tell the world and the country that no trial by ambush is contemplated by the constitutional provisions that protect the right of the accused May 6, 2008 PARLIAMENTARY DEBATES 841 persons. By the same token, the constitutional protection on the accused also includes certain rights and privileges; including advancing to the prosecution, at the very least, the names of witnesses or any possible potential alibi that they want put forward. Mr. Speaker, Sir, I say this again with absolute conviction that the measure of any modern country is done through the confidence that the public and the world has on its legal system. Law and order itself is founded on how efficiently the issue of prosecution and the treatment of accused persons is meted out. Fortunately, this country is lucky to have a Vice-President, for the first time in history, who is also a lawyer; an extremely senior lawyer, and I hope that his Ministry will consider bringing to the fore reforms in the Prisons Service so that instead of treating accused persons after conviction as second-rate citizens, we have a correctional system as understood in the rest of the world. Again, this is in line with the fact that legal and institutional reforms form the substance of the National Accord that this House passed barely a month or so ago. The fact that a country also reflects its efficiency in investment and management of its affairs, if that efficiency is measured against the yardstick of law and order, and particularly criminal justice system, is another reason that I want to use to persuade my colleagues in this House, to pass this law as quickly as possible. Mr. Speaker, Sir, I would like to touch on the issue that the Attorney-General referred to concerning the training of prosecutors. I sincerely think, with respect again, that, as a country, we must go beyond that. We must also train court clerks, so that they understand what it is they are interpreting for the accused person when he appears in court, and so that they can also offer the magistrate and the judge assistance, if necessary, in research and other formulations that affect their work. We have no choice. This is part of the institutional reforms that are so critical. If we offer training to court clerks, I want to suggest to the Attorney-General that the scheme of service that he is proposing for prosecutors, should also extend to court clerks. Those people work for long hours in extremely difficult circumstances. You will find that as long as a judge or a magistrate has a file in front of him, the court clerk must remain there, and must also take the mood of the court, the accused, the witnesses, and above all he is also the face of the magistracy and the judicial system to the rest of the world. Therefore, if court clerks are not enjoying good benefits--- I dare say that, as a country, we have failed this very important institution, even when we revised the salaries of judges, the magistrates and the court clerks were overlooked. I have no doubt that the Government will consider these very important issues so that they can be brought to the fore. Mr. Speaker, Sir, this law that is being brought forward is also going to address the issue of delays. We have become a country with a very bad image when it comes to the processing and finalisation of trials. Recently, the President himself was forced to release somebody who had been in remand for close to eight years, if my recollection is correct. The fact that people will now be able to enter into formal agreements will also eliminate the perception that you can buy your way into the criminal justice system through the bribing of prosecutors to enter into shallow, shady and sometimes unfair agreements to victims of crime. This time, such agreements would be required to be put in writing and would go towards eliminating the public perception of corruption in prosecutorial ranks. Mr. Speaker, Sir, allow me to mention another matter, which is very close to my heart, and which I think is important for the country. This is the issue of continuing legal education for members and officers of the judicial service. The Law Society of Kenya (LSK) itself has already initiated, and is already implementing, continuing legal education for advocates who remain on the 842 PARLIAMENTARY DEBATES May 6, 2008 Roll. It is time when, in the efforts of transforming and reforming these institutions that the judiciary itself considers--- The sooner they implement the better, continuing legal education not only for magistrates but also for judges, so that they can keep pace with not only legislation but best international practices in this particular area. In fact, I personally think that magistrates ought to be the starting point of judicial training. They ought to be offered a minimum of 90 days judicial training, so that when they get elevated to the Bench, if they are lucky, then they can be the principal beneficiaries of this. This, coupled with continuing legal education, is an essential reform for the benefit of our country, and will reflect well when I start implementing the policy on the Nairobi Metropolitan Area. After all, we are going to be telling the country that we have an efficient judicial system and an efficient metropolitan area, which will be attracting investors. Mr. Speaker, Sir, allow me to mention, only in passing, not because it is not important, but because it is crucial and in is in the mouths of all Kenyans, particularly those in the Grand Coalition, that we must produce a new Constitution for the country. I recollect the role that you personally played during the Bomas Draft. You are aware, firsthand, of the enormous work that was done regarding the updating the improvement, and above all, the reforms required in the judicial and legal system of our country. Mr. Speaker, Sir, I do hope that the principals, and the leaders of this Grand Coalition, will honour their word and ensure that the Grand Coalition gets to business and builds on the reforms, particularly the one that the Attorney-General has brought forward in form of the amendments to the Criminal Procedure Code, so that we can, once and for all, borrow that which we find useful from the Bomas Draft and then embrace it by way of reform. Mr. Speaker, Sir, you will recall that, during the last Parliament, we passed the witness protection law. That law has not found its right place in our judicial system. I suspect that it is something to do with the fact that the amendment to the Criminal Procedure Code had not come forward. The main focus of the witness protection law is to make sure that in seeking to eliminate and punish crime, we do not go for 100 per cent success, because the chances are that we will win only very few cases. Witnesses who are willing to come forward can come forward and seek protection under that particular law. Mr. Speaker, Sir, gain, I want to say, without fear of contradiction, that these amendments, which permit the entering into an agreement will, first, create the right atmosphere for people engaged in crime, but those who then see the light of day, or turn Christian or Muslim and want to repent their sins, to come forward, plead guilty, enter into an agreement by way of a plea bargain, but at the same time be able to offer first class evidence of the crime, particularly in corruption, drug-trafficking, money-laundering and such other crimes, so that the country can come to terms with the best international practices in this very important area. Mr. Speaker, Sir, looking at the law itself, one will observe that even if somebody had very serious objections to it, it is a balanced law. It is balanced because, under Clause 137(c) the court itself will have no right to participate in the negotiations for this agreement. This will to keep the judge and the magistrate away from perceptions that they are party to what the prosecution and the defence are discussing. Therefore, on the basis alone, that the court will not participate, the protection enhanced in Clause 137, whereby the accused is then informed by the court itself of their right not to plead guilty, or having done so, of his or her right to persist in that appeal and his or her right to be presumed innocent until proved guilty, his or her right to remain silent and not to testify during proceedings, his or her right not to be compelled to give self-incriminating evidence and his or her right to a full trial. This is where, I think, we ought to be very clear: A full trial also includes the right to discovery. He or she also has a right to be represented by an advocate of his or her choice and to examine any person directly or through his or her legal representative. These are May 6, 2008 PARLIAMENTARY DEBATES 843 extremely crucial aspects of modern governance. Mr. Speaker, Sir, it is important that this House accepts them and takes them on board, because the law is, yet again, emphasizing those rights. Mr. Speaker, Sir, you will also find that the Bill also says that by accepting plea-bargaining, an accused person will waive his right to a full trial and this is also very critical; the nature of the charge he or she is pleading to and the maximum possible penalty should be explained to him or her fully. This is for the simple reason that they may not know what they are pleading guilty to. Some of the situations that we have met in private practice, and also the mandatory minimum penalty and forfeiture--- This is a law that I humbly persuade my colleagues to pass without hesitation. The other thing is that, under Clause 137, you will notice a new and very crucial insertion. Before the court can accept the plea agreement, it is required---"
}