An Investigation into the Efficacy of Victim Offender Mediation in Capital Offences in Kenya (Dissertation Sample)

The scope of application of Alternative Dispute Resolution Mechanisms in criminal matters:
An Investigation into the Efficacy of Victim Offender Mediation in Capital Offences in Kenya
CHAPTER ONE: INTRODUCTION
1.1Background
1.1.1Background to the study
The primary focus of this paper is on the appropriateness or otherwise, of application of alternative dispute resolution mechanisms in criminal justice system in Kenya generally, and in particular, the efficacy of victim offender mediation in the aforesaid matters. The paper seeks to determine whether an out of court settlement as opposed to litigation in courts contributes to achievement of aspirations and needs of the state in relation to objectives of criminal law, as a party to criminal cases, whilst at the same time serving justice to victim and offender of the crime.
Victim offender mediation is a process that provides interested victims an opportunity to meet their offender, in a safe and structured setting, and engage in a mediated discussion of the crime. With the assistance of a third party mediator, the victim is able to tell the offender about the crime's physical, emotional, and financial impact; to receive answers to lingering questions about the crime and the offender; and to be directly involved in developing a restitution plan for the offender to pay back his or her financial debt.[/topics/courts/restorative-justice/promising-practices/victim-offender-mediation.htm. (last visit Jan 10, 2014)]
This process is different from mediation as practised in civil or commercial disputes, since the involved parties are not "disputants" nor of similar status - with one an admitted offender and the other the victim. Also, the process is not primarily focused upon reaching a settlement, although most sessions do, in fact, result in a signed restitution agreement. Because of these fundamental differences with standard mediation practices, some programs call the process a victim offender "dialogue," "meeting," or "conference."[ibid]
The goals of victim offender mediation include: To support the healing process of victims, by providing a safe and controlled setting for them to meet and speak with the offender on a strictly voluntary basis, to allow the offender to learn about the impact of the crime on the victim and to take direct responsibility for their behaviour, and to provide an opportunity for the victim and offender to develop a mutually acceptable plan that addresses the harm caused by the crime.[Ibid]
This paper therefore seeks to elucidate the place of alternative dispute resolution, and particularly victim offender mediation, in criminal justice system in Kenya. It will also determine whether the said mechanisms achieve justice if applied in the said matters.
1.1.2Background to the problem
Resorting to court system is still largely viewed by many as the best existing and viable dispute resolution mechanism. The courts are however pervaded by congestion and delay which have resulted in a backlog of cases and delays. This has affected the efficiency of judicial systems which weakens democracy, rule of law, and ability to enforce human rights law. This has therefore shifted the belief and majority of cases are referred to ADR.
The Constitution of Kenya enjoins courts and tribunals to use alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. The Constitution does not provide for the areas in law where Alternative Dispute resolution will apply. The literal reading of it will show that the Article applies to all cases with no distinction.[Githu Muigai, 2013, Arbitration Law and Practice in Kenya, Law Africa at 1] [Article 159(2)(c)]
However, the Civil Procedure Act provides for court annexed mediation, and Order 46 which deals with arbitration, specifically provides that the said two are to be applied in civil suits and matters related thereto.[Section 59 ivil procedure Act Cap 21 Laws of Kenya]
The jurisprudence from the court since the promulgation of the Constitution has however indicated a different position. There are "massive" civil suits referred to Alternative dispute Resolution mechanisms, either by the court or the parties themselves. Similarly, the practice has also shown that criminal cases could also be referred to the said mechanisms. In Republic v Mohamed Abdow Mohamed, the accused was charged with murder but pleaded not guilty. On the hearing date the court was informed that the family of the deceased had written the Director of Public Prosecutions (DPP) requesting to have the murder charge withdrawn on account of a settlement reached between the families of the accused and the deceased respectively. Subsequently, counsel for the State on behalf of the DPP made an oral application to have the matter marked as settled, contending that the parties had submitted themselves to traditional and Islamic laws which provide as avenue for reconciliation. He cited the provision of the Constitution which allowed the courts and tribunals to be guided by alternative dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.[Either under Arbitration Act 1995 or Civil Procedure Act.] [Criminal Case No. 86 of 2011, High Court at Nairobi] [Article 159 (2)(c)]
Nevertheless, the Article has been interpreted by the courts to include criminal cases which also include capital offences. The general rule therefore has been taken that as long as the mechanisms are not repugnant to justice and morality; any case may be resolved using them. The wording of the Article in the Constitution does not specifically state which cases are to be referred to other mechanisms other than court litigation. This appears to be a loophole which the parties to a criminal case have not failed to explore it.
1.1.3Objects of criminal law and punishment.
A crime refers to harmful act or omission against the public which the State wishes to prevent and which, upon conviction, is punishable by fine, imprisonment, and/or death. No conduct constitutes a crime unless it is declared criminal in the laws of the country. It may also be defined as anything the law makers say it is a crime. On the other hand, criminal law is seen as a series, perhaps not a system, of rules aimed at controlling misconduct, as well as behaviour of those involved in criminal justice system to ensure that stigma of a conviction is attached only to those whom it should be attached.[Read more: /definition/crime.html#ixzz2lAo3wD5c] [Dressler, J 2001, Understanding Criminal Law, LexisNexis, (3rd Ed) at 1] [Michael, J, 2006, Criminal Law, Pearson Education publishers Ltd, (7th Ed) at 1]
The object for which criminal law exist and thereby imposition of punishment is retribution, deterrence, incapacitation and rehabilitation.[Clarkson, C M V and Keating, H M, Criminal Law: Texts and Materials, Sweet and Maxwell, (4th Ed), at 26]
Retribution indicates vengeance or expiation, and more often, giving the offender their just deserts and/or using punishment as a system of censure or denunciation. It looks back to the crime and punishes because of the crime.["…the infliction of punishment by law gives definite expression and a solemn ratification and justification to the hatred which is excited by the commission of the offence, and which constitutes the moral or popular as distinguished from conscientious sanction of that part of morality which is also sanctioned by the criminal law. The criminal law thus proceeds upon the principle that it is morally right to hate the criminals, and it conforms and justifies that sentiment by inflicting upon the criminals, punishments which express it…." As per James Fitzjames Stephen, A History of the Criminal Law of England, Vol. II (1883) at 81-82]
Deterrence is however forward looking and concerned with consequences of punishment. It aims at reducing the crime by threat or example of punishment. It is intended to refrain the offender from further committing the crime as well as warning the potential offenders.[Clarkson, C M V and Keating, H M, Criminal Law: Texts and Materials, Sweet and Maxwell, (4th Ed), at 36]
Incapacitation seeks to render the offender incapable of committing more crimes if left at large. It applies in cases where neither rehabilitation nor deterrence works. The protection given to the public is thus locking up the offender.[Ibid at 47]
Rehabilitation seeks to reform the offender. Its aim is to secure conformity, not through fear but through some inner positive motivation on the part of individual. This is improving the character of the offender so that it is less inclined to committing the offence.[Ibid at 53]
1.2Statement of the problem
ADR and particularly victim offender mediation has, at least in theory, both national and international acceptance and application. Many organisations have been established to facilitate the process of victim offender mediation, both locally and internationally.
In Kenya, there is no specific legislation dealing with victim offender mediation, and therefore highlighting the scope of the process. There is no categorisation of the offences that may be referred, or subjected, to victim offender mediation. Of late, victim offender mediation is conducted under the auspices of the Constitutional provisions which encourage use of alternative dispute resolution including traditional dispute resolution.[After promulgation of the constitution of Kenya 2010] [Article 159 (2)]
This lack of demarcation under Constitution and any other statute present difficulties and controversy as to whether it also covers capital offences. This study therefore seeks to address the problem of categorization and suggest the category of offences to which victim offender mediation can apply
1.3Justification of th...