I had a conversation with an advocate explaining how the wheels of justice turn, with respect to the Babu Owino case.
Chief, you have a decent following, hence are able to reach a sizeable populace.
A large percentage of Kenyans opine that Kenyan Court systems don’t work. Most cite granting of bail to suspects as the reason that undermines their confidence in our Judiciary.
One thing most don’t understand is:
1– Bail is a Constitutional right
For it to be denied, there have to be certain circumstances that disentitle a suspect of the otherwise constitutionally guaranteed right. For example if the suspect is a threat to witnesses, other people, himself, or is likely to jump bail.
2– Until one has been convicted of an offense, they remain innocent..
Hence the principle, “One has the right to be presumed innocent unless proven guilty”
It matters not what the evidence might look like from the onset. The due process of law must be followed before one is either absolved or found culpable.
So what’s the due process?
2- Arraignment in Court after arrest to plead to charges
It should be noted that plea taking is not a hearing, so the evidence is not tabled at this point. Even that video you saw of someone shooting or grabbing a purse, is not tabled during the plea taking mention. Plea taking one is simply asked if the charges are true or not, and they either say guilty or not guilty. If they plead guilty, there is no need for evidence to be called. The accused is convicted on their own plea of guilt. If they plead not guilty, then a date must be given for hearing when witnesses and evidence are called.
Before the said hearing, one can either be remanded in prison awaiting a hearing, or released on bail (Remember bail is a Constitutional right). So when one pleads guilty, their advocate justifies why they should be granted bail, and the prosecution cites reasons why they believe the accused should be remanded and not released on bail, then the Court decides. It can release the accused on bail/bond, or remand them as they await hearing dates. The Court can set other conditions for such bail, eg, do not contact any witness against your case, etc.
It is at this point that most lay Kenyans, believe there has been a travesty in justice wakiona a suspect has been released on bail. Remember again, every offense, including murder, is bailable. Bail is not a fine so that people can say, “aliambiwa alipe 1M akaachiliwa”
It is simply a guarantee you are giving the Court that whenever called upon, you will attend Court. Fast forward to the day of the hearing. Witnesses testify, the evidence is tabled, and then the Court decides whether there is a case to answer. After the prosecution closes its case, a ruling is made on whether there appears, on the face of the evidence presented, to be a case that the accused should be called upon to answer.
If found to be a case, the accused is put to their defense and allowed to call witnesses and what a view. This is the third stage of the trial process called Hearing.
After Hearing is done, the Court reserves a date for judgment. It is important for Kenyans to appreciate that the process from arrest to judgment as explained must strictly be followed because justice works both ways. Both the victim, the state and the Accused are entitled to justice, hence Courts cannot fast track a case by skipping any of those steps since that will result in unfair trials which taints the whole process, making the Court’s finding susceptible to appeal.
All the while before Judgment, one is presumed innocent, irrespective of public opinion or perception. That explains why no matter how much noise is made, Let me use one of the unpopular examples (Babu Owino and Obado cases) the Court cannot punish the accused. Courts are in fact called upon to remain independent of public pressure and to be objective.
Also, the burden of proving a crime is high. In my next post, I will explain why the reason the burden is high is, someone is likely to lose their freedom, or life (in case of a death sentence). Money too, in case of a fine. This risk also calls upon a high threshold, there are schools of thought that, it is better a thousand criminals on the streets than one innocent man in prison or on death row. (I personally belong to another school of thought but I am keen not to elevate one thought over the other)
The other reason the burden is high is that we as human beings, at times settle scores with our enemies by accusing of things they may not have done. It is a possibility that some people go to court to harass their opponents, yet the Court process should not be abused. Most people are usually too eager to insist that simply because they saw a video somewhere, that the accused should be denied the fair trial process as explained here above. The question we must ask ourselves is:
Would you like those process skipped the next time your business competitor accuses you of some crime to gain territory over you? With technology, people must also understand that the manufacturing /planting of evidence is very possible. That is why even what looks as very obvious evidence must be interrogated in Court, and the accused given an opportunity to show why that evidence is not to be believed. Take, for example, a case of someone opening an account with the name Edgar Obare and doing all manner of crimes. Would you like the Court to convict you on the first day you are arraigned by simply saying, “We saw the account, it has your name and photos, so it must be you, you are a criminal”
You need to be afforded the opportunity to show, that even though it looks like it, it is not what it looks like.
The final point, there are so many cases in Court, so dates are allocated depending on the traffic of cases. Before the steps I explained above are completed, it could be years because there are other cases in Court too. I am not saying that there is no corruption in the Judiciary, but not all cases are slow for corruption
Now Edgar, do not disclose my ID if you happen to post this for your viewers, I am a private person and wouldn’t want maneno mingi as far as the Babu Owino case is concerned.
The arguments you make are very valid. Now I want you to dissect very specifically this Babu Owino case for the public. We all saw the video and there are a ton of victims who know his behaviors.
About Babu Owino case, this is how far the process has gone:
1 – Arrest.
2 – Arraignment for plea taking
He pleaded not guilty to the charges as read out to him, so it remained a question about, should he be remanded, or released on bail PENDING TRIAL. (I put this in caps so people would understand, he was not released for eternity, or unconditionally, he is awaiting the third stage of the trial (Hearing). Bail is usually just to guarantee that the accused will attend Court whenever called upon to instead of having them wait in remand for the day of trial.
I find it necessary to explain a little about how bail works since this is where the misperceptions lie. The beginning point is, Babu Owino, like any other accused person in this case, is entitled to bail as a Constitutional guarantee. That cannot be taken away unless the prosecution is able to prove he can jump bail, or he will be a danger to witnesses or other people.
After a plea of not guilty, there is usually a mini hearing on why bail should be set or not set. The prosecution, of course, argued that being a gun holder, he could be a danger to other people and intimidating witness. When there are rivaling representations on bail or no bail, the Court has discretion (leeway) to set bail and any amount of sureties as it deems sufficient to secure the attendance of the accused in Court. His bail was set at 10M, and he was also asked not to contact the witnesses or anyone linked to the case. That explains why he wouldn’t personally teach DJ Evolve lest he is seen as intimidating or interfering with witnesses.
You must wonder, what about the video we all saw? What about all the disgruntled people out there testifying as to his depravity? See in the next posts explained, the trial is a process and all steps must be followed. Justice is multifaceted, justice jas to be done for the victim, the state, and the accused. Justice for the accused would mean the right to be presumed innocent until proven guilty (After a complete and a protracted trial)
The accused also has the right to interrogate the evidence presented by the state. This is because, the law is usually prone to abuse, whereby at times innocent people are accused of certain things. Remember evidence, including video, photo, documentary and other forms of evidence can be manufactured to achieve a certain end. If I today I opened an account with the name Edgar Obare. Posted a few of your photos, and commit certain crimes, certain people will believe you committed them, after all, the account has your name and photos. If it looks like a duck and quacks like one, is it always one? Certainly not.
In such a scenario, you’d be entitled to prove that yes the said account had your name and photos, but it wasn’t you. From the analogy, I hope guys appreciate that there cannot be a summary trial. One cannot be convicted on the first day of arraignment since the other steps of the trial have to be gone into. That is why on the first day of arraignment, the Court wouldn’t have said, “Babu Owino, we all saw the video, you are guilty, I convict you here and now. It does not matter how you plead.”
It may say that in the fullness of time, but after hearing (witnesses must testify, and the video tabled formally in court) That takes me to the third step of trial which is what Babu Owino is awaiting in this case…
3 – Prosecution Hearing.
It is at this point that the infamous video will be produced, witnesses called.
After that, the court will make a ruling on whether Babu Owino has a case to answer or not. This will depend on how overwhelming the evidence will be.
If the Court is convinced that there is a case to answer (July 5, 2020, 2:04 pm is a very likely thing). Babu will be called to his defense, so we will go to the next step,
4 – Defence Hearing
Here, Babu will call any witnesses he may have to prove either his innocence or points of defense if any.
5 – Judgment
After the Court listens to the prosecution, and it finds him guilty(very likely) it will do the following :
6 – Listen to Babu’s mitigation
This refers to any representation he may have to show that although he is guilty, the Court show exercise some measure of clemency on him by imposing a lower sentence. These mitigation measures may include that he is remorseful, that he has taken steps towards reconciling with his victim. For example payment of bills and what a view changes are that he will be found culpable. I hope the public understands (I am not his advocate or apologist, neither am I saying he is free of blemish). Babu is entitled to the entire process of law, and to prove his defense.
I will explain some of the defenses some people have which go towards reducing culpability defense:
The Court looks at the level of provocation and the extent of reaction. We might both agree wielding a gun to whatever provocation Babu was dealt with was an overreaction.
When you commit a crime in the course of self-defense.
When you were too inebriated to understand the consequences of your actions. This though is not an automatic defense, depends on whether the intoxication was self-induced or not.
There are other defenses but those are the most likely in our circumstance
Also, for any crime, you must prove,
1– Mental state whereby one planned and intended to commit the crime.
2- The action/committing the crime itself.
So at times crimes are excused, or a lesser sentence imposed. That is if the mental state of intention was absent though the action nonetheless happened.
So yes, in the fullness of time after the Babu Owino case, Babu will be convicted. But until the hearing stage, the Court cannot use the video to summarily convict him.
Courts may be slow due to backlogs. Others may be corrupt alright, but the wheels of justice, though slow, eventually do justice. Case in point, the Waluke and Wakhungu cases. I hope that helps.