Principle in out of court settlements abused

By APOLLO MBOYA

In a ruling delivered on May 2, 2013 in the Criminal Case No 86/2011, Lady Justice Roselyne Lagat-Korir set free an accused person charged with murder after payment of camels and goats to the family of the victim.

Mohamed Abdow Mohamed was charged, jointly with others not before court, with the murder of Osman Ali Abdi on the 19th day of October 2011 at Eastleigh, 10th Street in the Starehe District within Nairobi County.

SETTLEMENT

The accused was arraigned in court on November 16, 2011 and he pleaded not guilty to the charge. On the date of hearing on 26th March 2012, however, the prosecutor informed the court that Counsel on record, watching brief for the deceased’s family, had written to the Director of Public Prosecutions(DPP) requesting that the charge be withdrawn. This was on account of a settlement reached between the families of the accused and the deceased respectively.

The letter in question read in part: “…….The two families have sat and some form of compensation has taken place wherein camels, goats and other traditional ornaments were paid to the aggrieved family.

Actually one of the rituals that have been performed is said to have paid for blood of the deceased to his family as provided for under the Islamic Law and customs. These two families have performed the said rituals, the family of the deceased is satisfied that the offence committed has been fully compensated to them under the Islamic Laws and Customs applicable in such matters and in the foregoing circumstances, they do not wish to pursue the matter any further be it in court or any other forum…….”

The Prosecutor, on the instructions of the DPP proceeded to make an oral application in court to have the matter marked as settled.

The prosecutor cited Article 159 (1) of the Constitution, which allows the courts and tribunals to be guided by alternative dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.

He urged the court to consider the case as ‘sui generis’ as the parties had submitted themselves to traditional and Islamic laws, which provide an avenue for reconciliation. He stressed that each of the parties was satisfied and felt adequately compensated.

NO INTEREST

The counsel further submitted that the prosecution had great difficulty in securing the attendance of witnesses as the said witnesses were not only no longer interested in the prosecution, but were actually eager to see the matter marked settled.

He drew the court’s attention to the affidavit of Abdow Alio Ibrahim, the deceased’s father which in part reads;-

“...its worth noting that it goes against our tradition to pursue the matter any further and/or testify against the accused person once we have received full compensation in the matter of which we already have… it is our instruction that the matter and/or court case be withdrawn as our family wishes to put a stop to the matter.”

The judge observed that the DPP is mandated to exercise state powers of prosecution and in that exercise may discontinue at any stage criminal proceedings against any person and satisfied herself that the ends of justice will be met by allowing rather than disallowing the application proceeded to discharge the accused.

While it is true that Alternative Dispute Resolution (ADR) mechanisms of negotiation, mediation, conciliation and arbitration have gained significance, there is some doubt upon the application of ADR in criminal justice.

The criminal jurisprudence is quite different from civil matters. Crime is against the whole society, which invites penal provisions to place a benchmark unlike private disputes that ADR mechanism can be easily applied.

In the instant case, the accused did not even plea bargain. Plea bargaining may be considered as an agreement in a criminal case between the prosecution and the defence by which the accused changes his plea from not guilty to guilty in return for an offer by the prosecution or when the judge has informally made the accused aware that sentence will be minimised if the accused pleads guilty.

PUBLIC HARM

In other words, it is an instrument of criminal procedure which reduces enforcement costs for both the State and the accused and allows the prosecutor to concentrate on other cases.

The ruling by the Learned Judge discharging an accused charged with murder after payment of camels and goats is to say the least to trivialise the remedial role of criminal trial by naively painting settlement as a perfect substitute for conviction and tantamount to privatising public harm at the cost of public justice.

The Learned Judge did not even consider the provision of Article 159(3), which states that traditional dispute resolution mechanisms shall not be used in a way that contravenes the Bill of Rights or is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or is inconsistent with this Constitution or any written law.

Is the court passing a message that you need camels and goats to get away with murder?

 

The writer is Secretary/CEO of the Law Society of Kenya

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