By Pravin Bowry
Article 50 (9) of the Constitution states that Parliament shall enact legislation for the protection, rights and welfare of victims of offences.
Under the Fifth Schedule, dealing with “Legislation to be enacted by Parliament” no time limit for this legislation is stipulated — perhaps an omission but the former Attorney-General publicly had acknowledged the urgency of legislation to protect the interests of the victims.
To state that violent crimes in Kenya are on the increase is perhaps an understatement. Murders, manslaughters, robberies and assaults of all types and degrees not only leave physiological scars on the victims but, more often than not, grave physical injuries. The plight of innocent victims, from bystanders to those on official duty, has never been addressed by the judicial system.
These victims of violent crimes have no recourse or redress against known or unknown criminals, whether investigated or non-investigated, convicted or free and untraceable. If the culprit is known, getting redress is near impossible when inevitably the criminal has no real means or is in jail.
Compensation schemes to compensate victims of crime exist in many legal systems of most western jurisdictions around the world.
Despite the emergence of the schemes in modern statutory framework, the method of providing compensation for victims of crimes is centuries-old and can be traced to ancient Babylonian Greek, Jewish and German laws.
Even in African tribal and customary laws there is a distinct and clear tribal compensatory formula as depicted in the often quoted “blood money” concept.
In 1968 New Zealand took the first step to enact the Criminal Injuries Compensation Act and it was established by statute and state funded. In India, where compensation to the victim is awarded at the time of sentencing and the amount is set off against the wages the prisoner earns while offering prison labour. This ensures that the perpetrator of a crime pays for his actions, literally!
expression of sympathy
Britain had for about two decades operated a non-statutory scheme, later to enact the Criminal Injuries Compensation Act, 1995. USA, Canada, Australia and even European countries now have efficient and well organised schemes for compensation to those who fall prey largely to violent crimes.
Should all tax payers or citizens not bear the costs of crime since it is an unavoidable feature of the modern world?
Monetary compensation can be the State’s expression of sympathy and concern for those who suffer unjustifiably and for the untold invasions of their personal integrity, resulting in injury or loss as a result of crime.
Schemes typically limit the amount of compensation payable to each claimant depending on the gravity of the injuries. In some jurisdictions there is a maximum amount attached to each criminal event regardless of the extent of injury.
Matters of the handicapped and the aged and even those who cannot fend for themselves are being actively addressed under the Constitution and it will alleviate great hardship if compensation for victims is introduced.
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When thinking of victims rights, Kenyans must address their minds to compensating victims of crime in an effective, orderly and compassionate manner without technicalities and red tape.
Kenyan courts hardly ever make restitution orders after convictions and restitution awards by the courts have proved ineffective in other jurisdictions.
In Kenya the victims of crimes can rarely identify perpetrators and most criminals are never investigated or charged and even when traced are found to have no means and are impecunious.
Civil litigation equally is ineffective, expensive, time consuming and embroiled in evidential and civil procedure intricacies.
Effectively, victims of crime in Kenya suffer alone with extended families looking after those injured, maimed and handicapped.
If we accept and underscore the notion that criminal violence is a communal responsibility then the State as a representative of the community has a legal duty to compensate victims of crime because, after all, it has failed to prevent crime.
Under the principle of ‘culpable inaction’ where the State and its agencies fail to anticipate crime and act accordingly to avert these crime sleading to loss, injury and damage to private property, then in such a case the State should be liable to pay damages to the individuals affected.
failure to act
Case in point, from the Waki Report. It is evident that different state agencies had information and warned the government of the likelihood of ethnic violence but the government failed to act in a timely fashion.
Therefore, the government, under a fully functioning victim compensation scheme, would have been liable to pay damages for loss, injury and also damage to property as a result of its inaction.
The Attorney General should wear his thinking cap and come up with an indigenous Bill for Kenyans to debate and address the plight of these forgotten class of victims.
The writer is a lawyer.