Sexual offenders may start getting mandatory legal representation during court trial should a petition filed by a Nairobi-based lobby group sail through.
The group, Sheria Mtaani Na Shadrack Wambui, in a petition lodged at the High Court, says sexual offences are not only serious but are also complex cases that involve expert witnesses which, in a number of cases, include at least two doctors.
The group says some sexual offences, such as defilement and rape, attract harsh and punitive punishments including life imprisonment of the suspects.
Other sexual offences carrying life imprisonment include deliberate transmission of HIV or any other life threatening sexually transmitted disease.
“The unrepresented sexual offender is always up against witnesses that include expert and seasoned doctors that he is supposed to cross-examine, which is an art that is studied over years and used to establish the truth and eliminate witness exaggeration or lies,” the petition reads.
The group wants court to suspend hearing of 4,088 ongoing sexual assault cases and specifically where the suspects do not have formal legal representation.
Through lawyer Shadrack Wambui, the group says it is unfair when an offender who is facing a life imprisonment sentence is arguing his case without a lawyer against a State Counsel, who undoubtedly has a wealth of experience, knowledge and expertise.
Wambui says some sexual offenders end up pleading guilty to the charges, since they are unaware of the legal trial process and the sentence to be meted out.
A recent report by the Office of Director of Public Prosecutions indicates that roughly 86 per cent of cases reported and prosecuted relate to sexual offences.
The report indicates that 12 persons pleaded guilty to rape, one person pleaded guilty to attempted rape, 110 to the charge of defilement, one of gang rape while 21 and 12 people to the charge of incest and sexual assault, respectively.
“DPP had boasted of an increased conviction rate of persons charged under the Sexual Offences Act as opposed to any other crimes. This calls upon us to not only congratulate the officers of DPP but also to question the possibilities that we could as well have convictions that were entered perhaps due to lack of representation of the accused persons during trial,” says lawyer Wambui.
He wants the court to compel the Chief Justice to assign advocates to the accused persons in cases that attract a maximum sentence of life imprisonment.
He says there is a need to change the manner in which trial of alleged sexual offenders are conducted.
He wants court to make it a mandatory requirement that a preliminary enquiry be done on whether or not an accused person would require legal representation by an advocate at the State’s expense.
Since capital offences such as murder, which attract a maximum sentence of life imprisonment are entitled to mandatory legal representation, sexual offenders also deserve the same.
“It is evident that the Office of Chief Justice’s policy or directions unfairly discriminate persons accused of sexual offences that attract a maximum sentence of imprisonment for life,” says Mr Wambui.
He questions why the Office of Chief Justice prefers free representation of persons accused of murder and minors in conflict with the law to accused persons that cannot afford representation.
According to him, sexual offences that attract a maximum sentence of up to imprisonment for life deserve mandatory legal representation because they face serious sentences.
He explains that the Office of Chief Justice has not, as a matter of policy, assigned or designated advocates to represent sexual offenders, yet there is no reasonable distinction between persons accused of murder and children in conflict with the law.
Wambui adds that lower courts rarely adhere to a law that demands that they promptly inform an accused sexual offender of his right to be assigned and represented by an advocate as they are likely to suffer grave and substantial injustice.
“The local experience is that this requirement is ignored consequently jeopardising the trial of the accused who takes plea in the absence of a representative and at times forced to proceed with the hearing without counsel,” says Wambui.
The legal representation is due to the complexity of such matters and the seriousness of the sentence that could go as far as life imprisonment.
“These offences also require the understanding of complex terminologies as set out under section 2 of the Sexual Offences Act and a further understanding of the elements of each particular offence which is not readily possible for persons who are not trained in law,” he argues.
