By Gilbert Langat
Anybody can fall on the wrong side of the law anytime in the course of their life. When this happens most people get confused and may not know what to do.
And while ignorance of the law has no defense, ignorance of your rights as an arrested person can impact heavily on your ability to defend yourself effectively for fair administration of justice.
Police cells and court rooms instill fear in most people. The arrogance of the police and the intimidating presence of a magistrate or a judge coupled with the legal jargon used in the courts of law make things worse.
So, what is the most basic information you should have as an arrested person and what are the key steps to follow when you are labeled an accused in a criminal case?
Step 1: Arrest
Criminal cases, are cases in which the State is the main complainant. Such offences can include robbery with violence, assault, murder and rape. Such cases are thus initiated by the State through its law enforcement agencies such as the police and will in most cases start with an arrest. It is important to note that, you do not lose your fundamental human rights once you become arrested.
Article 49 of the Constitution states that an arrested person has several rights including the right to be informed “the reason of the arrest the right to communicate with an advocate, and other persons whose assistance is necessary as well as the right to not to be compelled to make any confession or admission that could be used in evidence against the person.” It also stipulates that an arrested person should be presented before a court if possible within 24 hours.
Step 2: Taking a plea
This step is a about accepting or denying the charges that are being leveled against you. It happens once you are presented in court for the first time. At this stage you are not required to defend yourself as this will come later. But any accused, including those accused of murder can be granted bail as this is provided for by the constitution.
Article 49 specifically ends by stating that
“at the first court appearance (the accused should be) charged or informed of the reason for the detention continuing, or to be released (or either) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not be released.”
Step 3: Trial
The trial is the stage during which the facts of the case will be presented. This is usually done by the Prosecutor. The prosecution may call witnesses to testify against you as they support their case. When the prosecution closes their case, two things might happen. The magistrate or judge may rule on a no case to answer motion or the accused is put on their defense.
Section 210 of the criminal procedure code of Kenya states that
“if at the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as the prosecutor and the accused person or his advocate may wish to put forward, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defense, the court shall dismiss the case and shall forthwith acquit him.”
Step 4: Defence
If the court finds that you have a case to answer, then you will proceed to the defense stage where you will need to present your facts to counter those of the Prosecution. This is your chance to refute the evidence against you. You can do this in three ways: sworn testimony that will be cross-examined by the prosecution; calling witnesses; using an unsworn testimony which is not subject to cross examination. It is also your right to remain silent at this stage and await the court’s judgment. Once this stage is closed, the magistrate or judge then proceeds to write the judgment.
Step 5: Judgment
During the reading of the judgment you can either be acquitted or convicted. Acquittal or conviction of an accused person is provided for under section 215 of the criminal procedure code. Once convicted, then the appropriate sentence is passed. The prosecution might bring forth your previous criminal records (if any) to help in passing out deterrent sentences. The law provides that you can mitigate before a ruling is delivered. During mitigation you can ask for leniency of the court by giving compelling reasons for the same. Such reasons include suffering from terminal illness, being the sole breadwinner or being a first time offender.
Step 6: Acquittal / Sentencing
In case you get acquitted, then you will walk scot-free. But the court can pass a sentence which may require you to pay a fine, serve a jail term or both. You can also be put on probation for a period of time during which you are surveyed closely so that you do not commit another offence.
Always note that, you are innocent until proven guilty. Thus unless otherwise proved you should never accept criminal responsibility until you are heard before a court of law.
Gilbert Langat is an Eldoret based journalist currently working as a journalism trainer with Moi University.